UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


HISTORY  OF 

THE  SUPREME  COURT  OF 
THE  UNITED  STATES 


BY 
GUSTAVUS   MYERS 

AUTHOR  OF    "  HISTORY  OF  THE  GREAT  AMERICAN  FORTUNES, ''    "  HISTORY'OF 

TAMMANY   HALL,"   "  HISTORY  OF  PUBLIC   FRANCHISES  IN 

NEW  YORK  CITY,"  ETC. 


CHICAGO 

CHARLES  H.  KERR  &  COMPANY 
1918 


Copyright  1911-1912 
BY  GUSTAVUS  MYERS 


Entered  at  Stationers'  Hall,  London,  Eng.,  1912 
By  Gustavus  Myers 


All  Rights  Reserved  by  Gustavus  Myers 

Including  that  of  Translation  into  Foreign 

Languages,  including  the  Scandinavian 


3.-Hp-.rS 


PREFACE 

To  a  work  such  as  this,  avoiding  as  it  does  both  theories 
and  conclusions,  and  confining  itself  strictly  to  ascertainable 
facts,  little  or  no  prefatory  note  is  required.  Neither  is  any 
explanation  necessary  as  to  why  the  author  chose  to  write 
the  historical  narrative  of  the  Supreme  Court  of  the  United 
States.  All  departments  of  human  activity  are  subject,  or 
should  be,  to  scrutiny  and  investigation,  and  the  series  of  facts 
discovered  become  a  definite  part  of  knowledge  to  be  explored, 
assembled  and  disseminated. 

Quite  true,  while  research  has  hitherto  penetrated  into  all 
other  branches  of  historical  development,  the  courts  have  been 
singularly  exempt.  That  they  have  been  immune  from  search- 
ing inquiry;  that  around  them  has  been  created  a  myth,  a  fic- 
tion of  supermundane  superiority,  is  no  reason  why  the  case 
should  continue  so.  On  the  contrary,  the  more  their  history 
and  course  have  been  shrouded  in  tradition  and  mystery,  the 
more  pressing  is  the  necessity  for  learning  and  describing 
the  actual  facts.  Only  those  who  for  sentimental  or  ulterior 
purposes  would  seek  to  disseminate  fiction  rather  than  facts 
can  object  to  a  serious  inquiry  into  any  institution  and  th^ 
collocation  of  verified  facts.  Such  an  objection  at  once  dis- 
credits and  disposes  of  itself  in  its  obvious  attack  upon  an 
attempt  to  bring  out  the  truth,  and  in  its  aim  to  suppress  the 
facts  from  becoming  public  information. 

The  long  roll  of  facts  herein  set  forth  have  not,  it  is  need- 
less to  say,  been  created  by  the  author.  Good,  bad  or  in- 
different, they  are  all  matters  of  record ;  there  they  lie  in  the 
archives  awaiting  the  patient  and  sincere  research  of  the 

5 


6  PREFACE 

historical  delver;  and  if  nearly  all  of  them  are  now  presented 
for  the  first  time  that  is  not  the  fault  of  the  facts  but  con- 
stitutes a  standing  exposure  of  the  superficial,  if  not  design- 
edly partial  character,  of  much  of  the  extant  work  passed 
off  as  historical  writing.  Spurious  as  most  of  these  writings 
are,  destitute  of  the  merit  of  even  a  disposition  to  plumb 
the  truth,  characterized  by  a  desire  to  glorify  the  basest  pas- 
sions and  gloze  over  the  true  causes  and  development  of 
events,  they  have  unfortunately  had  their  influence  in  propa- 
gating confusion,  falsehood,  and,  worst  of  all,  popular  sub- 
mission to  the  ideas  and  conceptions  demanded  by  the  doni' 
inant  class.  But  the  day  has  even  now  dawned  when  such 
works  are  going  to  the  rubbish  heaps  or  perhaps  being  re- 
garded as  singular  curiosities  of  "  intellectual  "  vassalage. 

For  nearly  a  century  and  a  quarter  the  Supreme  Court  of 
the  United  States  has  towered  aloft  in  omnipotent  sway  over 
all  other  institutions.  Absolute  and  final,  its  decrees  have 
gone  deep  into  the  history  of  the  nation,  and  have  had  their 
mighty  effect  upon  those  wars  of  classes  and  subdivisions 
of  classes  which  it  was  once  (and  to  some  extent  still  is)  the 
fashion  to  ignore  in  theory  while  asserting  the  fact  in  deed. 
During  its  whole  existence  the  Supreme  Court  of  the  United 
States  has  been  overwhelmed  with  laudation,  although  not  at 
all  times  free  from  criticism. 

But  generalities  do  not  concern  us,  nor  do  mere  gilded 
words  or  fine  assumptions  have  weight.  What  we  do  care 
about  is  to  know  the  facts,  so  far  as  the  annals  can  give  them, 
of  this  all-powerful  institution.  We  seek  to  learn  its  ante- 
cedents, its  establishment,  its  development,  its  successive  per- 
sonnel, and  its  course,  and  what  relation  the  whole  bore  to 
the  great  questions  and  interests  of  each  associated  era.  This 
is  the  information  supplied  in  the  following  pages;  and  if 
the  facts  presented  are  striking,  original  and  voluminous,  it 
should  be  remembered  that  they  are  only  such  as  are  in  the 
records ;  without  doubt  many  more  underlying  facts  have 


PREFACE  7 

never  been  introduced  into  the  accessible  archives,  and  these 
are  lost  to  the  authentic  search  of  the  historian. 

As  will  be  seen,  this  work  is  not  one  of  a  routine  bio- 
graphical or  descriptive  character,  dependent  upon  injections 
of  fanciful  matter  or  dramatic  coloring.  It  seeks  to  go  to  the 
basic  depths,  and  in  doing  so  it  becomes/far  more  than  a  nar- 
rative of  a  single  institution.  It  carries, with  a  comprehensive 
history  of  the  development  of  capitalist  resources,  power 
and  tactics,  and  of  the  great  and  continuing  conflict  of  classes. 
It  reveals  the  true  sources  of  the  primitive  accumulation  of 
wealth  which  necessarily  beginning  with  the  appropriation  of 
land  and  the  dispossession  of  the  workers,  have  extended  to 
the  elaborate  and  conjointed  forms  of  capitalist  power  sub- 
sisting to-day. 

Palpably,  a  dominant  class  must  have  some  supreme  in- 
stitution through  which  it  can  express  its  consecutive  demands 
and  enforce  its  will,  whether  that  institution  be  a  king,  a  Par- 
liament, a  Congress,  a  Court  or  an  army.  In  the  United 
States,  the  one  all-potent  institution  automatically  responding 
to  these  demands  and  enforcing  them  has  been  the  Supreme 
Court  of  the  United  States.  Vested  with  absolute  and  un- 
appealable power,  it  has  been  able,  with  a  marvelously  adapta- 
ble flexibility,  to  transmute  that  will  not  merely  into  law  but 
into  action.  Hence,  the  narrative  of  that  court  inevitably  be- 
comes a  history  of  the  origin  and  progress  of  capitalism  and 
correspondingly  of  the  forces  in  society  antagonistic  to  the 
capitalist  order. 

Because,  however,  the  Supreme  Court  as  an  institution  has 
throughout  its  whole  existence  incarnated  into  final  law  the 
demands  of  the  dominant  and  interconnected  sections  of  the 
ruling  class  it  should  not  be  supposed  that  its  members  have 
necessarily  been  susceptible  to  the  vulgar  forms  of  venal  cor- 
ruption. That  the  rise  and  ever-expanding  sway  of  the  capi- 
talist class  have  been  accompanied  by  ceaseless  fraud  and 
bribery  is  overwhelmingly  attested  by  the  cumulative  evi- 


8  PREFACE 

dence.  But  no  one  can  read  the  proofs  herein  presented  with- 
out being  impressed  by  the  fact  that  the  Supreme  Court  as 
a  whole  has  been  peculiarly  free  from  venal  corruption  in  an 
age  when  such  corruption  was  common  if  not  continuous. 
During  the  extended  career  of  that  Court,  personal  venality 
has  not  been  the  determining  factor. 

Instance  after  instance  occurs  where  Justices,  at  the  end  of 
long  service  on  that  Bench,  have  died  virtually  penniless,  or 
possessed  of  the  most  scantily  moderate  degree  of  means. 
Yet  many  of  those  very  Justices  were  the  same  who  by  their 
decisions  gave  to  capitalists  vast  resources,  or  powers  trans- 
latable into  immense  wealth.  The  influences  so  consistently 
operating  upon  the  minds  and  acts  of  the  incumbents  were  not 
venal,  but  class,  influences,  and  were  all  the  more  effective 
for  the  very  reason  that  the  Justices  in  question  were  not' open 
to  pecuniarily  dishonest  practices.  From  training,  association, 
interest  and  prejudice,  all  absorbed  in  the  radius  of  permeat- 
ing class  environment,  a  fixed  state  of  mind  results.  Upon 
conditions  that  the  ruling  class  finds  profitable  to  its  aims, 
and  advantageous  to  its  power,  are  built  codes  of  morality  as 
well  as  of  law,  which  codes  are  but  reflections  and  agencies  of 
those  all-potent  class  interests. 

In  the  case  of  men  whose  minds  are  already  permanently 
molded  to  such  pufposes,  and  whose  character  and  station  for- 
bid the  use  of  illicit  means,  immeasurable  subservience  can 
be  obtained  which  crude  and  vulgar  money  bribery  would 
hopelessly  fail  to  accomplish.  Under  these  circumstances  a 
great  succession  of  privileges  and  powers  are  given  gratui- 
tously, and  class  corruption  appears  as  honest  conviction  be- 
cause of  the  absence  of  personal  temptations  and  benefits  on 
the  part  of  the  Justices.  In  this  deceptive  and  insidious  guise 
supreme  judicial  acts  go  forth  to  claim  the  respect  and  sub- 
mission of  the  working  class  against  whom  the  decisions  are 
applied. 

Furthermore,  in  taking  a  large  survey  of  historical  events, 


PREFACE  9 

the  fact  that  nearly  all  of  the  men  ascending  to  the  Supreme 
Court  of  the  United  States  had,  as  attorneys,  served  power- 
ful individuals  or  corporations  need  occasion  no  undue  com- 
ment. Understanding  the  development "  of  modern  society, 
and  its  evolutionary  transitions,  we  can  clearly  perceive  that 
certain  men  skilled  in  law  had  to  do  the  indispensable  legal 
work  of  capitalist  interests,  and  whether  this  or  that  set  of 
lawyers  did  it  is  immaterial  historically.  Able  servitors  of 
the  ruling  economic  forces,  it  naturally  followed  that  those 
forces,  controlling  Government,  should  select  certain  of  those 
lawyers  to  go  on  the  Supreme  Court  Bench;  and  how  com- 
pletely, consistently  and  accurately  the  personnel  of  the  Su- 
preme Court  has  represented  the  dominant  class  section  or 
sections  of  each  era  is  abundantly  shown  by  the  mass  of  facts 
in  these  chapters. 

In  conclusion  I  desire  to  express  to  my  friends  Frederick 
Sumner  Boyd  and  Anne  Sumner  Boyd  my  deep  appreciation 
of  their  kind  services  in  connection  with  the  final  revision  of 
the  manuscript  for  publication,  and  to  all  those  who  have  in 
substantial  ways  encouraged  the  preparation  of  this  work,  and 
placed  means  at  my  disposal,  I  wish  to  acknowledge  my  sin- 
cere appreciation. 

New  York,  January,  1912. 


CONTENTS 

CHAPTER  PAGE 

PREFACE 5 

1.    CONDITIONS    PRECEDING    ITS    ESTABLISHMENT:     THE    AC- 
QUISITION OF  THE  LARGE  LANDED  ESTATES 13 

II.    THE  LABORING,   SERVANT  AND   SLAVE  CLASSES,  AND  THE 

GROWTH  OF  THE  TRADING  CLASS 48 

III.  THE  REAL  FORCES  OF  THE  REVOLUTION  AND  THE  DRAFTERS 

OF  THE  CONSTITUTION 73 

IV.  THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  JOHN  JAY    .  135 
V.    FROM  JAY'S  RESIGNATION  TO  MARSHALL'S  ACCESSION   .     .  197 

VI.    THE  AUTHENTIC  JOHN  MARSHALL 228 

VII.     MARSHALL  AND  His  CHIEF  COADJUTOR,  STORY   ....  258 
VIII.    THE   FURTHER    COURSE   OF   THE   SUPREME  /COURT   UNDER 

MARSHALL 283 

IX.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  TANEY  .     .     .  355 
X.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  TANEY  (con- 
tinued)  391 

XI.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  TANEY  (con- 
tinued)    440 

XII.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  CHASE     .     .  483 

XIII.  THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  WAITE   .     .  528 

XIV.  THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  FULLER  .     .  578 
XV.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  FULLER  (con- 
tinued)  618 

XVI.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  FULLER  (con- 
tinued)    661 

XVII.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  WHITE    .     .  695 
•KVIII.    THE  SUPREME  COURT  UNDER  CHIEF  JUSTICE  WHITE  (con- 
tinued)    739 

INDEX 787 


HISTORY  OF  THE 
fc    SUPREME   COURT  OF   THE 
UNITED  STATES 

CHAPTER  I 

CONDITIONS  PRECEDING  ITS  ESTABLISHMENT:  THE 
ACQUISITION  OF  THE  LARGE  LANDED  ESTATES 

Although  founded  as  an  original  institution,  apparently  new 
in  itself  and  dissociated  from  any  prior  experiment,  the  Su- 
preme Court  of  the  United  States  was,  nevertheless,  the  lega- 
tee, from  its  inception,  of  an  antique  body  of  laws  and  a  mass 
of  customs,  traditions,  views  and  conditions  growing  out  of 
long-standing  conflicting  interests. 

Isolated  from  what  has  preceded  them  as  some  institutions 
may  appear,  because  lacking  a  direct  titular  ancestor,  they  are 
no  more  so  than  any  of  the  other  manifold  evidences  of 
human  activity.  Their  form  may  sometimes  seem  novel  and 
unrelated,  but  their  life  principle  and  all  of  the  display  of 
instinct  and  conduct  springing  from  it,  have  the  most  intimate 
connection  with  previous  events,  often  reaching  back  to  re- 
mote time.  Neither  are  established  institutions  accidental, 
capricious  or  aimless.  Their  lineage  is  clearly  traceable ;  and, 
imperfect  as  they  may  sometimes  seem,  they  represent  the 
definite  expression  at  a  particular  time  of  a  definite  purpose 
to  conserve  certain  ideas  or  conditions.  This  much  is  axio- 
matic. But  at  this  point  conventional  historical  inquiry  stops 
without  scrutinizing  the  growth  and  contests  of  antagonistic 
forces,  and  what  special  dominant  section  of  those  warring 

13 


14  HISTORY  OF  THE   SUPREME  COURT 

forces  institutions  thus  established  were  designed  to  represent. 
To  ascertain  these  facts  is  a  vital  preliminary,  essential  to  a 
clear  knowledge  of  cause  and  effect  springing  from  concrete 
economic  conditions. 

When  the  Supreme  Court  of  the  United  States  was  or- 
ganized, there  was,  to  be  sure,  a  distinct  environment,  as  there 
is  in  all  times  and  ages.  The  environment  then  prevailing, 
however,  was  so  fundamentally  different  from  that  related 
(or  rather  misrepresented)  in  the  customary  histories,  that 
a  narrative  of  it  and  the  conditions  leading  up  to  it,  is  in- 
dispensable to  a  correct  understanding  of  the  history  and 
career  of  the  Supreme  Court.  Once  this  link  is  supplied, 
the  nature  of  the  personnel,  and  the  current  of  the  policy,  of 
that  Court  become  clear,  and  present  a  continuous  and  com- 
prehensible account,  leaving  nothing  to  the  imagination,  and 
no  enigmas  over  which  to  puzzle. 


Steadily,  through  more  than  a  century  and  a  half,  the 
process  of  forming  on  the  soil  of  America  a  landed  and 
trading  aristocracy,  on  the  one  hand,  and  on  the  other,  a 
menial  and  dependent  laboring  and  slave  class,  went  on  unin- 
terruptedly. Long  before  the  outbreak  of  the  Revolution,  so- 
ciety was  divided  into  various  classes  and  these  into  grades, 
sharply  defined  from  one  another  in  law,  as  well  as  by  ex- 
tent of  wealth  or  by  tokens  of  rank  or  degradation.  With  the 
very  settlement  of  the  country,  the  European  system  of  land 
and  trade  frauds  had  been  transplanted  —  that  system  of  fand 
seizure  by  which  the  feudal  barons  had  aggrandized  them- 
selves, and  that  system  of  fraud  in  trade  by  which  Europeaflr- 
merchants  had  grown  rich.  Throughout  New  England,  New 
York,  Pennsylvania,  Maryland,  Virginia,  the  Carolinas  and 
Georgia  enormous  estates  were  gradually  acquired.  Some 
were  obtained  by  fraud  upon  the  Indians,  or  by  bribing 
royal  officials,  or  both ;  still  others  by  the  officials  clandestinely 
using  their  authority  to  secure  vast  estates  for  themselves. 


CONDITIONS   PRECEDING    ITS    ESTABLISHMENT 


Fraud  in  Ancient  Massachusetts. 

Orthodox  Puritan  piety  went  hand  in  hand  with  the  con- 
mission  of  frauds,  if  the  laws  of  the  day  shadow  the  condi- 
tions prevailing.  In  Massachusetts,  then  comprising  also 
what  is  now  the  State  of  Maine  and  a  portion  of  the  present 
State  of  New  York,  the  corruption  of  public  officials  became 
so  general  that  an  act  was  passed  in  the  year  1645  imposing 
a  penalty  of  £40  or  whipping  for  corrupting  any  public  official 
to  deface  the  public  records.1  For  forging  land  deeds,  the 
offending  person  was  to  pay  the  aggrieved  party  double 
damages  ;  if  he  could  not  or  did  not  he  was  to  be  publicly 
whipped  and  a  "  Romaine  F  "  was  to  be  burned  in  his  face.2 
The  practices  of  the  Puritan  judiciary  may  be  judged  from 
Section  ix,  Act  of  1635,  which  prohibited  judges  interested 
in  civic  causes,  or  related  to  the  parties  at  action,  from  giving 
judgment.3 

In  Rhode  Island  the  principal  officials  and  elders  were 
either  seizing  land,  or  by  their  official  acts  were  awarding 
allotments  to  one  another.4 

The  Connecticut  Assembly  was  constantly  passing  laws  di- 
rected at  preventing  land  frauds  ;  a  supererogative  attempt  at 
virtuous  conduct,  inasmuch  as  many  of  the  officials  themselves 
were  thus  acquiring  estates. 

Conditions  in  Old  Connecticut. 

In  May,  1667,  the  General  Court  of  Connecticut,  "  being 
sensible  of  the  great  trouble  and  contention  that  doth  and  may 
arise  in  this  colony  by  reason  of  great  defects  that  are  found 
in  records,"  etc.,  found  it  necessary  to  pass  an  act  aimed  at 

1  "  Plymouth  Colony  Laws  "  :  82. 
*Ibid. 

3  "  Ancient   Charters   and   Laws   of   Massachusetts   Bay,   etc."     Pub- 
lished By  Order  of  the  General  Court,  1814. 

4  "  Rhode  Island  Colonial  Records,  1636-1663."    Vols.  I,  II,  etc.,  de- 
scribe many  instances. 


l6  HISTORY  OF  THE   SUPREME   COURT 

forestalling  frauds.8  A  statute  passed  by  the  Connecticut 
General  Court  in  May,  1717,  sought  to  prevent  frauds  in 
seizing  lands  from  the  Indians ;  it  ordained  that  no  Indian  title 
was  good  unless  it  had  the  approval  of  the  Connecticut  Assem- 
bly.6 

The  preamble  of  another  law,  enacted  in  October,  1718,  de- 
clared its  purpose  to  be  the  preventing  of  unlawful  entries 
of  vacant  lands  and  the  resulting  alienations.  The  act  re- 
cited the  prevailing  frauds,  "  whereby  many  persons  have 
been  greatly  defrauded,  great  disorders  occasioned,  divers 
quarrels  excited."  The  preamble  went  on  to  say  that,  be- 
cause of  these  frauds,  "  the  orderly  settlement  of  plantations 
[is]  frustrated ;  which  mischiefs  are  likely  to  continue,  and 
increase,  unless  sufficient  remedy  be  provided."  The  land 
in  question,  the  act  said,  belonged  to  the  government  and 
company  of  the  Colony  of  Connecticut,  by  grant  from  the 
crown  of  Great  Britain;  divers  persons,  under  pretense  of 
having  a  right  and  property  in  the  lands,  and  without  obtain- 
ing any  legal  conveyance  from  the  corporation,  had  pre- 
sumed to  enter  upon  the  lands  and  improve  or  sell  them.  A 
money  penalty  was  provided  in  the  case  of  unlawful  entry, 
and  it  was  decreed  that  entry  and  possession  did  not  make  a 
title.7 

The  preamble  of  a  fourth  act,  passed  in  October,  1722, 
reported  that  "  some  persons  have  pretended  to  purchase  of 
Indians  their  rights  as  natives  of  many  considerable  tracts 
of  land."  All  such  deeds  when  secured  without  the  consent 
of  the  Assembly  were,  it  was  announced,  ipso  facto,  void  in 
law.  The  lands,  the  act  set  forth,  belonged  to  the  colony; 
"  yet  under  color  of  such  deeds,  persons  unacquainted  with 
the  said  laws  may  be  imposed  upon,  deceived  and  greatly 
wronged."  A  heavy  specified  money  penalty  was  provided 

s  "  Connecticut  Laws;  Public  Statute  Laws"  (Edition  of  1808),  Vol. 

1 :  434-435-  CL, 

0  Ibid.,  436. 
7  Ibid.,  436-437. 


CONDITIONS    PRECEDING    ITS    ESTABLISHMENT  T/ 

against  those  thus  presuming  to  buy  lands  from  the  Indians, 
;md  the  persons  wronged  could  recover  in  court.8 

Other  acts,  enacted  in  Connecticut  in  1723  and  1729,  brought 
joyous  relief  to  many  of  the  foremost  men  of  the  colony, 
who,  before  they  had  received  any  patent,  had  leisurely  ap- 
propriated the  common  or  undivided  lands  of  the  ancient 
towns,  and  had  apportioned  them  among  themselves.  The 
acts  recited  that  "  many  of  the  ancient  proprietors  have  not 
only  sold  divisions  so  obtained,  but  also  a  considerable  part 
of  their  interests  and  proportions  in  said  common  lands." 
The  question  had  arisen  whether  these  sales  were  valid  —  a 
question  settled  by  the  acts  of  1723  and  1729  which  con- 
firmed them  as  legal.9 

In  May,  1727,  another  measure  was  passed  by  the  General 
Court  of  Connecticut :  "  An  Act  To  Prevent  Frauds,  Quar- 
rels, and  Disturbances  in  Bargains,  Sales,  Leases  or  other 
Alienations  of  Land  in  this  Government."  By  this  law  any 
person  attempting  to  give  or  receive  any  fraudulent  deeds 
was  to  forfeit  one-half  the  value.10  Evidently,  by  the  year 
1723,  the  value  of  land  in  Connecticut  had  greatly  increased; 
the  preamble  of  an  act  passed  in  October  of  that  year  states 
that  "  whereas,  in  the  first  settlement  of  this  colony  land  was 
of  little  value  in  comparison  with  what  it  is  now,"  etc.11 

These  details  as  to  how  lands  was  appropriated  in  early  set- 
tlement times,  while  apparently  bearing  no  close  relation  to 
the  establishment  and  functions  of  the  Supreme  Court  of  the 
United  States,  are  of  cognate  importance,  for  it  was  from 
these  conditions  that  the  predominant  class  of  that  era  and 
of  later  times  —  the  owners  of  the  landed  estates  —  rose  to 

8  Ibid.,  439.  °  Ibid.,  439-441.  10  Ibid.,  446. 

11  Ibid.,  444-445.  It  was  an  act  forbidding  the  sales  of  the  real  estate 
of  heiresses  without  their  consent.  Before  that  time,  when  heiresses 
married,  their  estates  became  the  exclusive  property  of  the  husbands, 
and  could  be  alienated  or  disposed  of  without  the  knowledge  or  con- 
sent of  their  wives.  Heiresses  must  have  been  in  slighter  demand  after 
the  passage  of  this  act. 


l8  HISTORY   OF   THE    SUPREME    COURT 

great  wealth  and  potency.  Between  the  methods  here  de- 
scribed, the  possessions  obtained  by  means  of  them,  and  the 
precedents,  laws  and  interests  erected  on  them,  on  the  one 
side,  and  the  composition,  character  and  policy  of  the  Supreme 
Court  of  the  United  States,  as  it  was  first  constituted,  on  the 
o^ther,  there  was  the  most  intimate  association,  as  will  be 
clearly  seen. 

The  Whole  of  New  Hampshire  Appropriated. 

When,  after  his  appointment  as  Captain-General  and  Gov- 
ernor of  Massachusetts  Bay,  New  York  and  other  provinces, 
the  Earl  of  Bellomont  arrived  in  New  York,  he  quickly  learned 
of  widespread,  popular  discontent  with  the  methods  by  which 
great  areas  of  land  were  being  seized  by  enterprising  and 
unscrupulous  individuals,  or  were  being  obtained  by  bribery. 
The  proprietorship  of  what  is  now  the  State  of  New  Hamp- 
shire was  claimed  by  Colonel  Samuel  Allen,  who  had  bought 
for  £250  the  claims  of  Captain  John  Mason,  a  director  of 
the  Plymouth  Company.  In  surrendering  their  charter  in 
1635,  the  directors  of  that  company  had  divided  their  territory 
among  themselves  individually ;  by  lot,  the  ownership  of  New 
Hampshire  went  to  Mason,  who,  some  years  previously,  had 
obtained  a  patent  to  the  same  area  from  the  company,  the 
patent  having  been  confirmed  by  King  Charles  I.  Securing 
his  appointment  as  Governor  of  New  Hampshire  in  1692, 
Allen  declared  the  whole  province  his  personal  property. 

Threatened  with  action  for  trespass,  the  settlers  appealed 
to  Bellomont,  who  investigated.  Communicating  to  the  Lords 
of  Trade,  June  22,  1700,  Bellomont  denounced  Allen's  title 
as  unsound,  and  charged  Allen  with  having  attempted  to 
get  a  confirmation  of  the  claim  by  offering  him,  Bellomont, 
a  bribe  of  £10,000  in  money  —  an  offer  repeated  three  or 
four  times.12  Allen  claimed  eight  or  nine  hundred  thousand 

1- "  Documents  Relating  to  the  Colonial  History  of  the  State  of  New 
York,"  Vol.  IV:  673. 


CONDITIONS    PRECEDING    ITS    ESTABLISHMENT  1C) 

acres,  valued  by  Bellomont  at  more  than  £3,000,000;  Allen 
himself  told  Bellomont  that  he  estimated  the  quit  rents  alone 
at  £22,000  a  year,  not  to  mention  the  great  value  of  the  im- 
proved rents. 

"  And  all  this,"  added  Bellomont,  "  besides  the  woods, 
which  I  believe  he  might  very  well  value  at  half  the  worth 
of  the  lands.  There  never  was,  I  believe,  since  the  world 
began,  so  great  a  bargain  as  Allen  had  of  Mason,  if  it  be 
allowed  to  stand  good,  that  all  this  vast  estate  I  have  been 
naming  should  be  purchased  for  a  poor  £250,  and  that  a  des- 
perate debt,  too,  as  Col.  Allen  thought.  ...  If  Col.  Allen 
shall  at  any  time  goe  about  to  make  a  forcible  entry  on  those 
lands  he  pretends  to  (for,  to  be  sure,  the  people  will  never  turn 
tenants  to  him  willingly)  the  present  occupants  will  resist  him 
by  any  force  he  shall  bring,  and  the  Province  will  be  put 
to  a  combustion,  and  what  may  be  the  .course  I  dread  to 
think.  .  .  ,"13 

Mason,  however,  had  left  an  heir  who  contested  Allen's 
claim.  In  the  long  litigation  ensuing,  Allen  was  several  times 
defeated,  the  last  time  in  1715.  Allen's  death  was  followed 
by  that  of  his  son;  and  after  sixty  years  of  turbulence  and 
actions  at  law,  the  whole  contention  became  outlawed,  to  the 
huge  relief  of  New  Hampshire  settlers.14 

Maine  Claimed  as  a  Private  Estate. 

The  entire  territory  of  what  is  now  the  State  of  Maine  was 
claimed  as  his  private  property  by  Sir  Fernando  Gorges,  who, 
for  betraying  the  Earl  of  Essex  to  Queen  Elizabeth,  had  re- 
ceived rich  rewards.  The  claim  descended  to  Gorges'  grand- 
son, Fernando  Gorges,  who,  on  March  13,  1677,  sold  it  to 
John  Usher,  a  Boston  merchant,  for  £1,250.  Usher  soon 
learned  that  the  British  government  had  been  contemplating 

13  Ibid.,  673-674. 

14  Lodge's  "A  Short  History  of  the  English  Colonies  in  America," 
402. 


2O  HISTORY   OF   THE   SUPREME   COURT 

opening  up  the  province  to  settlement;  he,  therefore,  wisely 
turned  over  his  deed  to  the  governor  and  company  of  Massa- 
chusetts of  which  colony  it  remained  a~  part  until  its  creation 
as  a  State  in  i82o.15 

The  Practices  in  Pennsylvania. 

Fraud  in  the  acquisition  of  land  was  so  notorious  in  the 
seventeenth  century,  that  section  20  of  the  laws  originally 
agreed  upon  and  adopted  by  William  Penn  and  his  followers 
before  they  left  England,  in  May  1682,  stated  that,  to  prevent 
frauds  and  vexations  within  the  province  of  Pennsylvania,  all 
conveyances  were  to  be  enrolled  or  registered  within  two 
months ;  else  they  were  to  be  void.  A  man  of  extremely  gen- 
tle character  and  unselfish  in  many  respects,  Penn  did  not, 
however,  neglect  to  make  ample  provision  for  his  personal  for- 
tune. Nor  was  it  solely,  as  certain  historical  writers  put  it, 
the  desire  for  religious  freedom  that  urged  Penn  and  his 
Quaker  band  to  settle  the  wilds  of  Pennsylvania. 

On  July  n,  1681,  Penn  signed  a  contract  —  or,  as  it  was 
termed,  "  certain  conditions  or  concessions  " —  with  a  group 
of  specified  adventurers  for  their  "  mutual  advantage."  The 
ninth  condition  declared  that  "  in  every  100,000  acres,  the  gov- 
ernor and  proprietary,  [Penn]  by  lot,  reserveth  ten  to  him- 
self, which  shall  lie  but  in  one  place."  16  By  this  condition  an 
enormous  private  estate  became  vested  in  Penn  and  his  de- 
scendants, and  caused  the  greatest  mischief.  In  addition, 
Penn's  heirs,  or  proprietaries,  set  up  a  claim  to  the  whole  of 
the  soil  contained  within  the  bounds  of  the  original  charter. 

Nearly  a  century  later 17  the  Legislature  of  Pennsylvania 

15  Donaldson's  "The  Public  Domain:  Its  History,"  etc.,  38. 

16  With  the   litigation   growing  out   of   this   condition,  the   Supreme 
Court  of  the  United  States  was  called  upon  to  do  some  extensive  ju- 
dicial construction  a  century  and  a  half  later.     See  case  of  Kirk  vs. 
Smith,  Wheaton's  Reports,  Supreme  Court  of  the  United  States,  Vol. 
IX:  257. 

17  November  27,  1779. 


CONDITIONS   PRECEDING   ITS   ESTABLISHMENT  21 

felt  itself  compelled  to  denounce  the  manner  in  which  the  Penn 
family  had  perverted  and  abused  the  terms  of  the  charter 
granted  to  William  Penn.  The  resolution  declared  that,  al- 
though the  charter  was  given  and  held  "  for  the  great  ends  of 
enlarging  the  bounds  of  human  society,  and  the  cultivation  and 
promotion  of  religion  and  learning,"  and  although  "  the  rights 
of  property,  and  powers  of  government,  vested  in  William 
Penn  and  his  heirs  were  stipulated  to  be  used  and  enjoyed  as 
well  for  the  benefit  of  settlers,  as  for  his  own  particular  emolu- 
ment," nevertheless  the  proprietaries  had  set  up  claims  and 
had  reserved  quit  rents  and  purchase  money  upon  all  grants 
of  land  —  acts  which  "  cannot  longer  consist  with  the  safety, 
liberty  and  happiness  of  the  good  people  of  this  common- 
wealth. .  .  ,"18 

The  succession  of  laws  passed  under  the  governorship  of 
William  Penn  indicate  the  prevalent  practices,  and  show  that, 
to  some  extent  in  Pennsylvania,  the  same  method  of  getting 
land  by  fraud  and  other  illicit  acts  obtaining  in  New  England 
and  elsewhere,  were  common.  A  law,  decreed  on  February 
7,  1700,  dealt  with  "  defacers  of  charters."  It  provided 
that  whosoever  should  forge,  deface,  corrupt  or  embezzle  any 
charters,  gifts,  grants,  bonds,  wills,  conveyances  or  con- 
tracts, or  who  should  deface  or  falsify  any  enrollment,  registry 
or  record,  should  forfeit  double  the  value  of  the  damage 
thereby  sustained,  one-half  of  the  damages  to  go  to  the  party 
wronged.  The  offender  should  be  discarded  from  all  places 
of  trust,  and  be  publicly  disgraced  as  a  false  person,  in  the 
pillory  or  otherwise,  at  the  discretion  of  the  court.19  That 
such  a  law  was  adopted  indicates  its  necessity. 

Another  act,  passed  in  the  same  year,  tells  of  frequent  over- 
measure  in  the  survey,  of  land  "  through  the  negligence,  igno- 
rance or  frauds  of  the  surveyors  or  chain-carriers,  and  many 

18  Carey  and  Bioren's  Pennsylvania  Laws,   1700-1770,  Vol.  II:  230- 
231.    This  legislative  resolution  is  further  described  later  in  this  work. 
ol.  1:5- 


22  HISTORY   OF  THE   SUPREME   COURT 

surveys  have  thereby  been  made  erroneous."  20  It  would  ap- 
pear that,  while  the  highest  dignitaries  in  the  province  were 
themselves  obtaining  great  estates  by  extra-legal  means,  they 
were,  at  the  same  time  forbidding  the  common  run  of  people 
from  doing  likewise. 

The  State  of  Affairs  in  Virginia. 

In  Maryland  and  Virginia,  great  estates  were  secured  by 
the  influential  few  by  the  most  fraudulent  methods ;  this  was 
particularly  so  in  Virginia,  which  then  included  an  immense 
area.  By  the  Virginia  general  land  act  of  1705,  the  right 
of  extensive  landholding  was  made  dependent  upon  servant 
or  slaveholding.  No  one  was  allowed  to  take  up  more  than 
5,000  acres  unless  he  owned  five  or  more  titheable  servants  or 
slaves,  in  which  case  he  was  permitted  to  secure  two  hundred 
acres  more  for  each  servant  or  slave  titheable.  The  same 
act  aimed  to  prevent  further  land  grabbing  on  a  large  scale 
by  prohibiting  grants  of  more  than  4,000  acres,  with  a  quali- 
fying clause  in  favor  of  entries  previously  made  for  larger 
areas.  If  premises  settled  by  inferiors  and  others  were  not 
seated  and  planted  within  three  years  from  the  date  of  the 
grant,  the  grant  was  void.  Each  free  immigrant  had  an  im- 
portation right  to  fifty  acres,  and  another  fifty  acres  were 
allowed  for  his  wife  and  child.  Payments  for  land  could  be 
made  in  tobacco.  The  provisions  of  this  act  were  either  ig- 
nored or  evaded  when  it  suited  the  interests  of  the  influential 
class,  or  were  altered  by  the  further  Acts  of  1710,  1713,  1748, 
1779  and  those  of  other  years. 

"  Although,"  says  an  old  legal  treatise  on  the  subject,  "  it 

20  Ibid.,  Vol.  VI,  Appendix:  54-55  and  61.  The  social  state  of  Penn- 
sylvania under  Quaker  rule  may  be  gleaned  from  the  laws.  On  Feb- 
ruary 7,  1700,  thirteen  acts  were  passed  providing  penalties  for  adultery, 
rape  and  various  other  sex  crimes,  bigamy,  robbing  and  stealing,  break- 
ing into  houses,  the  firing  of  houses,  forcible  entry,  assault  and  battery, 
murder,  spreading  false  news,  defamation  and  other  crimes.  These  acts 
were  repealed  in  1705,  and  stricter  laws  enacted  in  that  year,  and  in 
succeeding  years. 


CONDITIONS    PRECEDING    ITS    ESTABLISHMENT  23 

nowhere  appears  on  the  statute  books,  yet  it  is  known  that 
the  Governor  and  Council,  exercising  the  general  powers  of 
the  crown,  were  in  the  practise  of  granting  leave  to  indi- 
viduals and  companies  to  locate  large  tracts  of  land,  by  orders 
to  that  effect  entered  on  their  journal ;  and  there  were  also 
some  grants  of  lands,  as  compensation  for  military  service 
by  royal  proclamations.  The  grants  for  military  service  are 
confirmed  after  the  Revolution,  and  such  entries  in  the  council 
books  as  had  been  executed  by  actual  surveys  were  also  rec- 
ognized, but  all  the  rest  are  annulled."  2i 

Vast  Tracts  Fraudulently  Granted. 

The  methods  by  which  great  grants  of  the  most  valuable 
land  in  Virginia  were  obtained  may  be  illustrated  by  the  Van- 
meter  and  other  grants.  On  June  30,  1730,  John  Vanmeter 
of  New  York,  was  allowed  to  take  up  10,000  acres  on  the 
Shenandoah  River,  for  settlement  by  himself  and  his  family 
of  eleven  children.  As  soon  as  he  should  bring  in  twenty 
families  for  settlement,  he  was  to  receive  a  grant  of  20,000 
additional  acres  (not  previously  located  by  Robert  Carter, 
Mann  Page  or  others)  on  the  fork  of  the  Shenandoah  and 
Cohongaroota  rivers.22  He  was  allowed  two  years  in  which 
to  complete  this  entry,  and  in  the  meantime  all  other  persons 
were  forbidden  on  the  lands.  By  another  order  of  the  Coun- 
cil the  grant  was  enlarged  to  40,000  acres. 

Without  fulfilling  the  terms  of  the  grant,  the  Vanmeters, 
in  1731 — a  year  after  the  grant  —  assigned  their  rights  to 
Joist  Kite  and  Robert  M'Coy  of  Pennsylvania.  On  October 
i,  1731,  Kite  and  M'Coy  petitioned  the  Council:  That  they 
and  their  families  and  a  hundred  other  families  were  desirous 
of  removing  to  Virginia,  and  prayed  a  separate  grant  of 
100,000  acres  of  land.  An  "  Order  in  Council  "  was  graciously 

21  "The  Revised  Code  of  the  Laws  of  Virginia,"  Vol.  II,  Appendix 
II  (Land  Laws,  Edition  of  1819)  :  p.  345. 


24  HISTORY   OF   THE   SUPREME   COURT 

entered,  granting  their  petition:  thus  Kite  and  M'Coy  were 
allowed  to  enter  the  full  140,000  acres.23 

But  the  whole  of  this  area  lay  in  the  Northern  Neck  of 
Virginia,  claimed  by  Lord  Fairfax,  who,  in  1736,  entered  a 
caveat  against  the  issuing  of  a  patent  to  them.  A  litigation 
between  the  contestants  and  their  heirs  or  lessees  ensued 
which  lasted  for  nearly  half  a  century,  Fairfax's  opponents 
generally  winning  in  court,  and  compelling  Fairfax  at  one 
time  —  in  1771 — to  appeal  to  King  George  III  in  Council.24 
The  final  settlement  is  not  clear  from  the  records. 

Under  pretext  of  colonizing  the  land,  great  stretches  of  the 
most  accessible  and  valuable  regions  were  thus  acquired,  and 
were  soon  formed  into  large  estates,  creating  in  their  owners 
extensive  powers  of  control  of  local  government. 

The  Virginia  court  records  attest  that  corruption  and  collu- 
sion were  customary  methods  in  obtaining  land  grants.  One 
such  case,  for  example,  as  stated  in  the  court's  statement  of 
the  case,  disclosed  these  facts:  That  Wood  Jones,  in  the 
year  1743,  obtained  an  Order  in  Council  for  surveying  2,000 
acres  of  land,  and  that,  pending  the  dispute  between  Virginia 
and  Governor  Dinwiddie,  he  fraudulently  paid  the  pistole  fee 
demanded  by  the  governor,  and  obtained  a  patent,  notwith- 
standing that  Jones'  land  patent  covered  lands  patented  to 
one  Hatcher,  in  1740.  The  Virginia  High  Court  of  Chan- 
cery stated  that  the  grant  to  Jones  was  secured  surreptitiously ; 
that  the  officer  who  consummated  the  business  either  did  not 
know  that  Jones'  patent  included  another's  land,  or  it  was 
obtained  by  collusion  between  official  and  grantee.25 

""Revised  Code,  Laws  of  Va.,"  (Edition  of  1819)  Vol.  II,  346. 

24  The  circumstances  of  this  contest  bear  the  most  pregnant  and,  per- 
haps, startling  relation  to  the  narrative  of  the  Supreme  Court  of  the 
United  States,  as  will  be  completely  seen  later  in  this  work. 

25  Case  of  White  vs.  Jones,  Washington's  Virginia  Reports   (Court 
of  Appeals),  Vol.  I :  pp.  116-117.    The  decision  in  1792,  however,  was  in 
favor  of  the  Jones  grant,  on  the  ground  that  so  long  a  time  had  elapsed 
before  the  title  was  tested,  and  because  fraud  had  not  been  definitely 
proved.    The  Chief  Justice  of  this  court  was  one  of  the  greatest  land, 
jobbers  and  speculators  of  his  time.    See  later. 


CONDITIONS   PRECEDING   ITS   ESTABLISHMENT  2$ 

A  Group  of  Lords  Become  Feudal  Proprietaries. 

Much  of  the  richest  land  in  Virginia,  especially  that 
territory  in  what  was  called  the  Northern  Neck,  was  orig- 
inally granted  by  Charles  II  when  he  was  a  fugitive,  and 
confirmed  by  James  II  after  he  (James)  had  ceased  to  reign, 
to  such  favorites  as  Lord  Hopton,  Lord  John  Culpeper,  Lord 
John  Berkeley  (then  Sir  John  Berkeley),  Sir  William  Morton 
(one  of  the  Justices  of  the  King's  bench),  Dudley  Wyatt  and 
Thomas  Culpeper.  They  surrendered  the  grant  in  order  to 
have  it  renewed  with  extensions.  The  grant  conferred  on 
them  the  exclusive  ownership  of  the  Rappahannock  and  Po- 
tomac rivers  in  that  section.  It  gave  them  all  the  islands, 
woods,  underwoods,  timber,  fishings,  royalty  of  hawking  and 
hunting,  mines  of  gold  and  silver,  lead,  tin  and  other  metals, 
quarries  of  stone  and  coal,  etc.,  to  have,  hold  and  enjoy  for- 
ever, and  transmit  to  their  heirs. 

Superadded  to  the  grant  were  certain  conferred  powers  of 
feudal  baronial  dominion,  by  which  the  grantees  could  create 
manors,  hold  baronial  court,  could  be  patrons  of  churches, 
nominate  all  ministers,  receive  all  fees  and  emoluments,  and 
possess  themselves  of  goods  of  felons  and  fugitives,  escheats 
and  forfeitures.28  They  were  empowered  to  give,  grant  or 
alienate  all  the  granted  land  to  anyone  willing  to  buy,  and 
were  allowed  a  generous  twenty-one  years  in  which  to  settle 
their  domain ;  otherwise  a  certain  part  of  the  grant  was  to  be 
voided.27  General  jurisdiction  of  the  vaguest  kind  only  was 
reserved  to  the  Governor,  Council  and  Assembly  of  Virginia. 
For  this  absolute  lordship,  the  grantees  were,  by  the  charter, 
required  to  pay  to  the  crown  in  annual  rent  only  a  paltry  six 
pounds,  thirteen  shillings  and  fourpence  "  in  lieu  of  all  serv- 
ices and  demands  whatsoever."  A  one-fifth  part  of  all  gold 
mined,  and  a  one-tenth  part  of  all  silver,  were  also  reserved 
to  the  Crown. 

-°  "  Revised  Code,  Laws  of  Va."  (Edition  of  1819),  Vol.  I:  343. 
-7  Ibid. 


26  HISTORY    OF   THE    SUPREME   COURT 

Lord  Fairfax  Grants  300,000  Acres  to  Himself. 

The  intention  of  most  of  the  members  of  the  group  of  dis- 
solute favorites  to  whom  this  rich  present  was  given  was  to 
convert  it  into  money  to  squander  in  England.  His  asso- 
ciates bought  out  Lord  Hopton's  interest ;  they  in  turn  sold  all 
their  rights  to  Lord  Thomas  Culpeper,  who  became  sole  owner 
and  proprietor  in  fee  simple.  Culpeper,  in  1736,  obtained 
a  confirmation  from  the  Virginia  Assembly,  and  a  release 
from  the  twenty-one  year  condition.28  As  the  heir-at-law  of 
Lord  Culpeper,  Lord  Thomas  Fairfax  became  the  sole  abso^ 
lute  proprietor,  and  his  tenants  were  under  "  servile,  feudal 
and  precarious  tenure."  By  the  act  of  the  Virginia  Assembly, 
in  1748,  all  grants  made  by  Fairfax  were  confirmed  to  the 
patentees,  but  they  were  to  pay  him  rents,  services  and  emolu- 
ments.29 

So  much,  for  the  present,  for  these  chronological  facts ; 
their  great  importance  to  the  subject  of  this  work  will  be 
dealt  with  later.  At  the  time  Fairfax  inherited  his  domain, 
it  was  generally  supposed  that  his  power,  in  British  and  Colo- 
nial law,  was  merely  a  delegated  power  of  sovereignty,  to  be 
exercised  for  the  benefit  of  legitimate  settlers.  But  Fairfax 
showed  how  this  supposition  could  be  evaded;  it  was  quite 
simple,  as  he  demonstrated,  to  vest  a  huge  new  estate  in  him- 
self by  a  little  circumlocution.  On  one  occasion  he  made  a 
grant  of  300,000  acres  to  Bryant  Martin,  his  nephew  and 
agent.  Martin  promptly  and  fraudulently  reconveyed  it  to 
Fairfax,  who  laid  out  the  whole  as  a  splendid  manor.30 

28  "  Revised  Code,  Laws  of  Va.,"  Vol.  I :  Chap.  3,  p.  5. 

29  Ibid.,  Chap.  4,  p.  10. 

30  See  statement  of  the  court,  in  1793,  in  the  case  of  Jacob  Westfall 
vs.  John  Singleton,  Washington's  Virginia  Reports,  Vol.  1 :  227.     Fair- 
fax did  a  thriving  and  dubious  land-office  business.     He  invited  settlers 
in,   promising  them   rights,   and   agreeing  to   convey   land   "  for  three 
lives,   renewable   forever,"   reserving  to  himself   an  annual    rent.     But 
although  the  rent  was  paid,  Fairfax  refused  to  convey,  and  much  liti- 
gation resulted.     (P.  228.) 


CONDITIONS    PRECEDING   ITS    ESTABLISHMENT  2/ 

Lavish  Distribution  by  the  Virginia  Council. 

It  was  by  means  of  these  "  Orders  in  Council,"  given  by. 
members  of  the  Virginia  Council  to  themselves,  or  often 
fraudulently  or  corruptly  granted  to  others,  that  nearly  all  the 
extensive  Virginia  estates  were  obtained.  The  manorial  estate 
of  Robert  Carter,  for  instance,  was  thus  secured,  embracing 
60,000  acres  of  land  in  Westmoreland  County  and  in  other 
ceunties ;  the  seat  of  the  estate  was  Nomini  Hall,  a  great  colo- 
nial mansion  in  Westmoreland  County.  Built  between  the 
years  1725  and  1732  of  brick  covered  with  strong  white  mortar, 
this  manorial  seat  was  seventy-six  feet  long  and  forty  wide, 
and  was  of  unusual  magnificence  for  the  time. 

Carter's  possessions  were  so  large  and  valuable  that  he  was 
called  "  King "  Carter.  His  domain  descended  by  entail  to 
his  grandson,  Robert  Carter,  who,  in  addition  to  his  landed 
estate,  owned  six  hundred  negro  slaves,  a  flour  mill  near  his 
mansion  capable  of  milling  25,000  bushels  of  wheat  a  year, 
and  was  proprietor  in  part  of  an  iron  works  in  Baltimore.31 

Another  "  Order  in  Council,"  June  12,  1749,  gave  to  "  a 
numerous  company  of  adventurers,"  calling  themselves  the 
Loyal  Company,  license  to  take  up  and  survey  800,000  acres 
of  land,  beginning  at  the  North  Carolina  line  and  running 
westward  to  the  Mississippi  River;32  and  on  October  29, 
1751,  another  body  of  speculators,  styling  themselves  the 
Greenbrier  Company,  were  given  a  grant  of  100,000  acres.33 

Two  of  the  leading  members  of  the  Loyal  Company  were 
Nicholas  Lewis  and  Edmund  Pendleton,  both  of  whom  by 
reason  of  the  illicit  profits  from  their  speculations,  became 
men  of  considerable  wealth  and  great  influence;  Pendleton 

31  Phillip  Vickars  Fithian's  "Journal  and  Letters,  1767-1774."     Fith- 
ian  was  a  tutor  in  Carter's  family.     Robert  Carter,  the  grandson,  was, 
like  the  other  large  landholders,  of  the  governing  class;  as  a  member  of 
the  Provincial  Council  he  was  active  in  the  making  of  laws. 

32  "  Revised  Code  of  the  Laws  of  Virginia,"  Appendix  II  (Land  Laws, 
Edition  of  1819),  p.  347. 

33  Ibid. 


28  HISTORY   OF   THE   SUPREME   COURT 

ascending  after  the  Revolution,  to  the  presidency  of  the  Vir- 
ginia Court  of  Appeals  —  a  juridical  post  he  long  occupied,34 
and  in  which  he  was  called  upon  to  decide  many  important 
land  disputes. 

Although  having  anything  but  a  clear  title,  and  fully  aware 
of  conflicting  claims  to  part  of  the  land  granted  it,  the  Loyal 
Company  hurried  its  surveys,  and  rushed  ahead  to  sell  many 
tracts  to  settlers  at  the  rate  of  £3  per  hundred  acres.  Caveats 
were  rilled  by  various  persons  claiming  prior  ownership.  The 
greatest  bitterness  prevailed  on  the  part  of  competing  claim- 
ants and  settlers,  the  one  denouncing  the  company  as  an  un- 
principled band  of  speculative  and  corrupt  usurpers,  and  the 
other  asserting  that  they  had  bought  nothing  but  bad  titles, 
which  they  had  to  spend  good  money  to  defend. 

The  Operations  of  the  Loyal  Company. 

The  ensuing  litigation  delayed  the  completion  of  the  Loyal 
Company's  surveys  within  the  term  required  by  the  condition 
of  the  grant.  But  this  difficulty  was  easily  solved  by  the 
Virginia  Council,  every  member  of  which,  it  was  suspected, 
was  interested  in  the  grant ;  an  "  Order  in  Council  "  was  issued 
on  June  14,  1753,  granting  the  Loyal  Company  four  more 
years  in  which  to  complete  its  surveys.  The  company  then 
resumed  its  locations,  and  its  sales  to  settlers,  until  the  French 
and  Indian  war  breaking  out,  an  irruption  of  Indians  drove 
the  settlers  away.  That  war  over,  both  the  Loyal  Company 
and  the  Greenbrier  Company  petitioned  Governor  Dinwiddie 
and  the  Council  to  renew  their  grants  with  a  further  term  of 
four  years  for  the  completion  of  surveys  and  the  purchasing 
of  rights. 

34  See  Washington's  Virginia  Reports  (Court  of  Appeals),  Vol.  I, 
Preface.  Pendleton  and  his  associates  assigned  their  rights  to  other 
speculators.  Evidently  the  full  sums  due  them  were  not  paid ;  in  March, 
1799,  Pendleton  and  Lewis  brought  suit  to  enforce  payment  of  the 
sums  due  them  from  their  assignees.  See,  Rev.  Code,  Laws  of  Va., 
etc.,  Vol.  II,  Appendix  II :  343. 


CONDITIONS   PRECEDING   ITS   ESTABLISHMENT  20 

In  the  meantime,  under  Governor  Dinwiddie's  proclama- 
tion of  February  19,  1754,  George  Washington,  on  behalf  of 
himself  and  other  officers,  secured  a  grant  of  200,000  acres 
of  land,  for  military  services.  This  tract  covered  part  of  the 
area  supposed  to  have  been  forfeited  by  the  Loyal  Company 
and  the  Greenbrier  Company  for  non-performance  of  condi- 
tions. The  two  companies  sought  by  every  possible  method  to 
have  their  term  extended. 

But  although  some  of  their  members  were  among  the  fore- 
most politicians  and  men  of  wealth  in  Virginia,  the  royal 
officials  dared  not  grant  it,  in  view  of  a  stern  proclamation 
issued  by  George  III,  at  the  Court  of  St.  James,  on  October 
7,  1763.  This  proclamation,  the  result  of  many  Indian  out- 
breaks and  wars  and  massacres,  declared  it  to  be  essential  to 
the  security  of  the  colonies  that  the  Indian  tribes  should  not 
be  molested  or  disturbed  in  their  hunting  grounds.  Whereas, 
"  great  frauds  and  abuses  have  been  committed  in  the  pur- 
chasing lands  of  the  Indians,  to  the  great  prejudice  of  our 
interests,  and  to  the  great  dissatisfaction  of  said  Indians," 
the  purchasing  of  lands  reserved  to  the  Indians  was  strictly 
prohibited.35  In  the  face  of  this  decree  the  Governor  and 
Council  decided,  on  May  25,  1763,  that  they  could  not  grant 
the  petition  of  the  two  companies.36 

But  the  Loyal  and  the  Greenbrier  companies  claimed  an 
inalienable  vested  right  in  their  grant.  Was  it  their  fault,  they 
argued,  that  Indian  hostilities  had  disturbed  their  operations? 
Could  they  be  held  accountable  for  non-performance  of  condi- 
tions because  of  the  irruptions  of  Indians? 

They  did  not,  of  course;  mention  that  it  was  the  long  con- 
tinuing abuses  to  which  the  Indians  had  been  subjected  that 
had  driven  the  tribes  to  warfare;  and  if  such  a  plea  had  been 
put  forth  in  counter  argument,  it  would  not  have  been  listened 
to  in  any  court  of  law,  for,  by  the  old  laws  of  Virginia,  In- 

35  American  State  Papers :  Public  Lands,  Vol.  1 :  37. 
30  "  Rev.  Code,  Laws  of  Va.,"  Appendix  II  (Land  Laws,  Edition  of 
1819),  p.  347- 


36  HISTORY  OF  THE   SUPREME   COURT 

dian  captives  had  long  been  held  legitimate  objects  of  slavery. 
The  Virginia  act  of  1672  speaks  of  Indian  slaves  or  servants 
for  life;  the  act  of  1679  declared  that  Indian  prisoners  taken 
in  war  should  be  free  purchase  to  the  captor;  the  act  of  1685 
decreed  that  all  Indians  whose  parents  were  not  Christians 
at  the  time  of  their  purchase,  and  all  Indians,  which  (this  was 
the  pronoun  used,  not  who;  Indian  slaves  were  held  to  be 
property,  not  persons)  were  sold  by  neighboring  Indians  to 
the  whites  as  slaves,  "  are  deemed  as  slaves  to  all  intents  and 
purposes."  And  although  the  Virginia  act  of  1705,  according 
to  a  decision  of  the  Virginia  Court  of  Appeals,  in  1793,  had 
completely  repealed  all  former  laws,  and  had  released  all 
American  Indians  from  a  state  of  slavery,  yet  the  servitude  of 
Indians  long  prevailed.37 

Washington's  Grant  Conflicts  with  the  Loyal  Company's. 

When,  in  1773,  George  Washington  and  the  other  officers 
and  soldiers  claiming  to  be  entitled  to  their  grant  under  Din- 
widdie's  proclamation,  sought  to  have  it  confirmed,  the  Loyal 
Company  and  the  Greenbrier  Company  came  forward  with  a 
claim  of  prior  vested  rights,  and  objected  to  surveys  on  the 
land  claimed  by  them.  Finally,  on  December  16,  1773,  an 
"  Order  in  Council  "  was  issued,  recognizing  the  claims  of 
the  companies  as  valid  and  giving  the  soldiers  land  else- 
where.38 The  promoters  of  the  company  were  extremely  in- 
fluential in  both  the  Legislature  and  in  the  courts ;  and  an  act 
was  secured  without  difficulty  from  the  Legislature  in  May, 
1779,  apparently  confirming  only  the  lands  actually  surveyed, 
upon  which,  we  are  told,  the  Loyal  Company  "  handed  in 
very  numerous  surveys."  39  At  the  same  time  various  other 

37  See,  Case  of  Coleman  vs.  Dick  and   Pat,  Washington's  Virginia 
Reports,  Vol.  1 :  239. 

38  "  Revised  Code,  Laws  of  Va."  (Edition  of  1819),  p.  347,  etc.     Wash- 
ington and  his  fellow  officers  received  their  patents  in  1772;  the  act  of 
1779  confirmed  them. 

3»  Ibid. 


CONDITIONS   PRECEDING1    ITS   ESf ABLlSHMENT  3! 

grants  were  confirmed,  among  them  one  of  28,627  acres  to 
John  Savage  and  others. 

The  precedent  thus  set  in  the  case  of  these  companies,  and 
the  arguments  then  used,  proved  to  be,  as  we  shall  see,  of  the 
most  stupendous  importance  in  the  decisions  of  the  Supreme 
Court  of  the  United  States  in  the  nineteenth  century  —  de- 
cisions by  which  tens  of  millions  of  some  of  the  most  valuable 
public  agricultural,  coal,  iron,  timber  and  grazing  lands,  and 
gold,  silver,  copper  and  other  mineral  lands  were  alienated 
into  large  private  holdings. 

Enormous  Feudal  Estates  Established  in  New  York. 

In  New  York  and  New  Jersey  far  more  extensive  estates 
were  granted  by  official  favoritism  or  were  obtained  by  bribing 
royal  officials. 

During  the  period  under  Dutch  rule,  when  the  province  of 
New  York  and  adjacent  territory  was  called  New  Nether- 
lands, the  directors  of  the  Dutch  West  India  Company,  all 
of  them  Amsterdam  merchants,  secured  great  domains.  For 
a  few  "  duffels,  axes,  knives,  and  wampum,"  paid  as  purchase 
price  to  the  Indians,  the  agents  of  Kiliaen  van  Rensselaer,  an 
Amsterdam  pearl  merchant,  bought,  in  1630,  a  tract  of  land 
twenty-four  miles  long  and  forty  wide,  on  the  west  bank  of  the 
Hudson.  The  estate  comprised,  it  was  reckoned,  seven  hun- 
dred thousand  acres,  and  included  what  are  now  the  counties 
of  Albany  and  Rensselaer,  a  part  of  Columbia  County,  and 
a  strip  of  the  present  State  of  Massachusetts.40  Two  other 
directors,  Godyn  and  Bloemart,  obtained  great  feudal  estates 
in  what  is  now  New  Jersey ;  one  of  these  estates  extended  six- 
teen miles  both  in  length  and  breadth,  forming  a  square  of 
sixty-four  miles.41  These  estates  to  the  Patroons  carried  with 
them  absolute  feudal  rights ;  the  unquestionable  sovereign 
rights  of  proprietorship,  the  right  to  decree  laws,  and  the 

40  O'Callaghan's  "  History  of  New  Netherlands,"  Vol.  1 :  124. 

41  Ibid.,  125. 


32  HISTORY   OF   THE   SUPREME   COURT 

exercise  of  "high,  low  and  middle  jurisdiction/'  and  the  ap- 
pointment of  all  officials.  The  Patroon  was  also  given  the 
power  of  policing  his  domain  with  his  own  armed  forces.  All 
of  these  powers  he  could  exercise  "  according  to  his  will  and 
pleasure."  *2  From  such  conditions  originated  in  America  the 
great  wealth  and  power  of  the  Van  Rennselaer  family,  which 
was  so  potent  before,  during,  and  after  the  Revolution,  and 
which,  as  we  shall  have  occasion  to  note,  had  great  influence 
upon  the  bench  of  the  Supreme  Court  of  the  United  States. 

Great  Manorial  Estates  Secured  by  Bribery. 

After  the  capture  of  New  Netherlands  by  the  British,  and 
its  transformation  in  name  to  New  York  and  New  Jersey,  vast 
estates  were  obtained  T)y  the  outright  bribery  of  the  royal 
Governor  Fletcher.  Lord  Bellomont,  Fletcher's  successor,  in 
a  communication  dated  November  28,  1700,  to  the  Lords  of 
Trade  in  London,  specified  how  it  was  that  many  of  these 
estates  had  been  granted. 

For  a  bribe  of  £100,  according  to  common  report,  as  stated 
by  Bellomont,43  Captain  John  R.  N.  Evans,  of  the  royal  war- 
ship Richmond,  secured  a  grant  forty  miles  one  way  and 
thirty  another,  on  the  west  bank  of  the  Hudson  River  from 
the  present  town  of  Haverstraw  to  the  town  of  New  Paltz  in 
Ulster  County.  Nicholas  Bayard,  the  founder  of  an  influen- 
tial and  aristocratic  family,  received  from  Fletcher  a  grant 
forty  miles  long  and  thirty  wide,  on  both  sides  of  Schoharie 
Creek.44  To  Colonel  William  Smith  was  granted  an  estate 
fifty  miles  long  on  Nassau  —  now  Long  Island.  In  one  year 

42 "  Documents  Relating  to  the  Colonial  History  of  the  State  of 
New  York,"  Vol.  1 :  89-100.  Fuller  details  of  the  conditions  at  this 
time  are  given  in  the  "  History  of  the  Great  American  Fortunes,"  Vol. 
1 :  12-22. 

43 "  Documents  Relating  to  the  Colonial  History  of  the  State  of 
New  York,"  Vol.  IV :  463. 

44  Bayard  was  reputed  to  be  the  go-between  in  arranging  with  the 
sea  pirates  the  price  to  be  paid  by  them  in  return  for  Fletcher's  pro- 
tection. 


CONDITIONS    PRECEDING    ITS    ESTABLISHMENT  33 

Smith  cleared  £500,  the  proceeds  of  whales  captured  there,  as 
he  admitted  to  Bellomont.45 

From  Fletcher,  Henry  Beekman  received  the  grant  of  one 
estate  sixteen  miles  long  in  Dutchess  County,  and  of  another 
estate  twenty  miles  in  length  along  the  Hudson  River,  and 
running  eight  miles  inland,  which  particular  estate  was  valued 
at  £5,ooo.46  By  Fletcher's  grant  Peter  Schuyler,  Godfrey 
Delius  and  associates  conjointly  secured  a  grant  fifty  miles 
long  in  the  Mohawk  Valley,  valued  by  them  at  £25,000.  It 
was  a  grant,  wrote  Bellomont,  which  "  the  Mohawk  Indians 
have  often  complained  of." 

Here  was  the  origin  of  the  wealth  of  the  Schuyler  family, 
which  later,  directly  and  indirectly,  was  such  an  important  fac- 
tor in  influencing  the  course  of  the  Federal  Constitutional  Con- 
vention, and  the  of  the  Supreme  Court  of  the  United  States. 
Bellomont  wrote  to  the  Lords  of  Trade  that  it  was  charged  that 
Fletcher  had  got  at  least  £4,000  in  bribes  by  his  "  intolerable 
corrupt  selling  away  the  lands  of  this  province."  47 

The  Origin  of  the  Livingston  Estate. 

It  was  during  this  time,  also,  that  another  powerful  family 
and  fortune  were  being  founded  which  later  exercised  a  vast 
influence  on  American  politics,  and  had  its  representatives  on 
the  Supreme  Court  bench. 

The  younger  son  of  a  poor  exiled  clergyman,  Robert  Liv- 
ingston curried  favor  with  one  official  after  another,  changing 
his  politics  whenever  his  self-interest  demanded  it,  and  held 
lucrative  official  posts  for  half  a  century,  generally  filling 
several  offices  at  the  same  time.48  In  fact,  offices  were  cre- 
ated by  Governor  Dongan  apparently  for  his  sole  benefit. 
He  also  by  the  same  favoritism  became  an  army  contractor, 

45  "  Documents  Relating  to  the  Colonial  History,"  etc.,  Vol.  IV:  535. 
40  Ibid.,  39. 

47  Ibid.,  528. 

48  George  W.  Schuyler's  "  Colonial  New  York,"  Vol.  1 :  285-286. 


34  HISTORY    OF   THE    SUPREME    COURT 

and  the  saying  was  current  of  him  that  he  made  a  fortune 
"  by  pinching  the  bellies  of  the  soldiers." 

In  his  "  Albany  Chronicles,"  Reynolds  says  that  Livingston 
was  in  collusion  with  Captain  Kidd,  the  sea  pirate,  and  that 
Livingston  loaned  money  at  ten  per  cent.  By  grace  of  the 
royal  governors,  and  by  means  of  his  own  practices,  Living- 
ston, before  his  death  at  the  age  of  seventy-four  years  in 
about  the  year  1728,  had  managed  to  become  the  lord  of  a 
manorial  estate  sixteen  miles  long,  and  twenty-four  miles 
wide.  On  this  estate  he  built  flour  and  saw  mills,  a  bakery 
and  a  brewery,  and  exercised  feudal  jurisdiction. 

Futile  Attempts  at  Confiscation. 

Lord  Bellomont  made  determined  efforts  to  have  these  great 
estates  confiscated.  But  he  found,  as  he  wrote  November  28, 
1700,  to  the  Lords  of  Trade,  that  the  Assembly  of  New  York 
was  largely  composed  of  the  very  landed  magnates  whom  he 
sought  to  overthrow.  He  set  forth  the  grievances  of  the 
actual  settlers,  that  they  could  get  no  land,  and  their  objection 
to  becoming  "  a  base  tenant  to  Mr.  Delius,  Colonel  Schuyler, 
Mr.  Livingston,  and  the  others  of  the  whole  role  of  our  mighty 
landgraves."  Bellomont  applied  for  a  peremptory  order  of  the 
King  or  an  act  of  Parliament  for  the  confiscation  of  these  ex- 
travagant and  corrupt  grants  given  by  Fletcher  and  other 
governors.  Unless,  Bellomont  added,  "  the  power  of  our 
Palatines,  Smith,  Livingston,  the  Phillipses,  father  and  son 
.  .  .  and  six  or  seven  more  were  reduced  .  .  .  the 
country  is  ruined."  49 

The  Phillipses  referred  to  were  Frederick  and  his  son  Adol- 
phus,  who  had  received  an  immense  grant  of  land  in  what  is 
now  Putnam  County,  new  York.  Fredrick  Phillips  was  the 
employer  of  the  sea-pirate,  Captain  Samuel  Burgess,  of  New 
York,  who,  at  first,  was  sent  out  by  Phillips  to  Madagascar  to 

49 "  Documents  Relating  to  the  Colonial  History  of  the  State  of 
New  York,"  Vol.  IV :  533-534- 


CONDITIONS    PRECEDING    ITS    ESTABLISHMENT  35 

trade  with  the  pirates,  and  then  soon  turned  pirate  himself. 
The  first  voyage  yielded  Phillips  and  Burgess  £5,000,  the  pro- 
ceeds of  trade  and  slave-snatching;  from  the  second  voyage 
they  cleared  £10,000  and  three  hundred  slaves. 

Marrying  a  relative  of  Phillips,  Burgess  continued  piracy. 
Caught  and  imprisoned  in  Newgate,  Phillips  spent  large  sums 
of  money  to  save  him  from  death  and  finally  succeeded.  Bur- 
gess, however,  resumed  piracy,  and  met  death  from  being 
poisoned  in  Africa  while  carrying  off  slaves.50 

We  shall  have  need  of  recurring  to  the  Phillips'  estate  in 
a  later  chapter  dealing  with  the  means  by  which  John  Jacob 
Astor,  in  virtue  of  a  noted  Supreme  Court  decision,  obtained 
part  of  it. 

As  a  concession  to  Bellomont's  urgent  and  repeated  re- 
monstrances to  England,  the  New  York  Assembly  annulled 
at  least  two  of  Fletcher's  corrupt  grants,  but  most  of  the  ex- 
tensive grants  remained  intact,  causing  popular  uprisings  in 
later  generations.  The  corrupt,  interested,  intrenched  forces 
against  Bellomont  were  many  and  too  powerful.  The  justices 
of  the  courts  were  either  men  of  the  large  landholding  class, 
or  their  servitors.  Lewis  Morris,  Chief  Justice  of  the  Prov- 
ince of  New  York,  was  removed  from  office  by  Governor 
William  Cosby  for  (among  other  accusations)  sitting  in  his 
own  cause  in  land  and  other  cases.  Morris  denied  these 
charges  in  a  pamphlet  published  in  I735-51  Doubtless  his  de- 
fense was  not  altogether  without  its  extenuating  features,  inas- 
much as  Cosby  himself  was  one  of  the  large  landholders  and 
very  active  in  presenting  grants  of  estates.  Perhaps  the  in- 
terests of  competing  landholders  collided,  and  Morris  serving 

50  "  The  Lives  and  Bloody  Exploits  of  the  Most  Noted  Pirates,"  177- 
183.  This  work,  published  a  century  since,  was  a  serious  study  of  the 
various  sea-pirates. 

51 "  The  Case  of  Lewis  Morris,  Esq.,  Late  Chief  Justice  of  the  Prov- 
ince of  New  York,  etc. :  To  Be  Heard  Before  The  Lords  of  Com- 
mittee on  Plantation  Affairs."  This  document  was  published  as  a 
broadside. 


36  HISTORY   OF   THE    SUPREME    COURT 

one  side,  was  made  to  suffer.     Morris  was  later  appointed 
Governor-General  of  New  Jersey. 

Continuing  Corruption  of  Royal  Officials. 

To  put  a  stop  to  the  "  extravagant  grants "  of  land  by 
royal  governors  to  favorites,  accessories  or  bribers,  Bellomont 
had  proposed  to  the  Lords  of  Trade  that  no  grant  of  more 
than  a  thousand  acres  be  made  to  any  man,  except,  in  the 
case  of  larger  grants,  by  special  leave  of  the  king.  He  also 
recommended  placing  a  quit  rent  of  half  a  crown  on  every 
hundred  acres,  this  sum  to  go  into  the  royal  treasury.  It  was 
not  until  subsequently  that,  in  order  to  avert  abuses  and  con- 
sequent popular  dissatisfaction,  a  royal  order  was  issued  lim- 
iting to  two  thousand  acres  the  amount  of  land  to  be  granted 
to  any  one  occupant  or  settler.  But  this  law  was  easily 
evaded ;  the  royal  officials  continued  to  pervert  their  authority 
by  fraudulently  securing  for  themselves  by  indirection  great 
estates  of  the  most  valuable  land,  or  corruptly  gave  them  to 
others,  as  is  evidenced  by  the  following  examples,  recited  in 
the  court  records: 

In  1737,  George  Clarke  was  Lieutenant-Governor  of  the 
Province  of  New  York,  in  which  official  capacity  he  was  mem- 
ber and  vice-president  of  the  Colonial  Council  of  the  province. 
To  this  council  the  king  intrusted  the  power  of  granting  lands 
for  occupation  and  settlement,  subject  to  the  two-thousand- 
acre  limitation.  At  a  meeting  of  the  Colonial  Council  at  Fort 
George,  on  August  2,  1737,  at  which  were  present  Clarke,  Chief 
Justice  Kennedy  of  the  Provincial  Courts,  Courtlandt,  Kane 
and  Horsmander,  all  members  of  the  Council,  Clarke  presented 
a  petition  of  William  Corry,  who  had  recently  emigrated  from 
Ireland.  The  petition  set  forth  that  there  was  a  large  tract  of 
crown  land  in  Mohawk  County;  that  he,  Corry,  had  engaged 
to  bring  a  number  of  families  from  Ireland,  and  he,  therefore; 
applied  for  a  grant  of  100,000  acres  for  himself  and  for  such 


CONDITIONS    PRECEDING   ITS    ESTABLISHMENT  37 

other  persons  as  he  should  name,  the  names  to  be  inserted  by 
him  in  the  grant. 


How  Lieutenant-Governor  Clarke  Secured  a  Large  Estate. 

When  this  petition  was  presented,  Clarke  left  the  room. 
During  the  time  that  he  was  absent,  the  other  members  of  the 
Council  agreed  that  Clarke  should  grant  the  petition  for  100,- 
ooo  acres.  An  order  was  accordingly  made  to  that  effect  by 
the  Council,  and  a  survey  ordered.  Cadwallader  Colden,  then 
the  surveyor-general  of  the  province,  with  Clarke  and  Receiver- 
General  Archibald  Kennedy,  were  the  King's  regular  commis- 
sioners for  setting  out  all  lands  granted.  They  were  in- 
structed to  make  out  the  grant  to  Samuel  Heath,  William 
Crosby  (Sheriff  of  New  York),  Francis  Sylvester  and  nine 
others  named  by  Corry  as  trustees,  to,  and  for,  his  use ;  in  the 
grant  Corry  had  26,000  acres  specifically  made  out  for  himself. 

N.early  a  century  later,  Levi  S.  Chatfield,  then  Attorney- 
General  of  New  York  State,  in  bringing  suit  against  George 
Clarke,  a  rich  and  powerful  descendent  of  Lieutenant-Gov- 
ernor  Clarke,  for  the  annulment  of  that  ancient  grant  and  for 
the  recovery  of  the  lands  to  the  State,  recounted  the  preceding 
facts,  and  further  set  forth :  That  after  the  patent  was  issued, 
it  was  discovered  that  all  the  names  of  the  grantees,  except 
Corry,  were  used  in  joint  trust  for  Corry  and  Lieutenant- 
Governor  Clarke;  that  there  was  an  agreement  between 
Clarke  and  Corry  by  which  Clarke  "  should  pay  half  the 
charges  and  expenses  of  surveying  the  said  land,  and  of  pro- 
curing the  patents,  and  should  be  interested  in  one-half  the 
grant  of  100,000  acres  of  land;  and  that  one  equal  moiety 
of  the  25,400  acres  granted  by  the  aforesaid  letters  patent  to 
the  said  William  Corry  and  his  associates,  were  so  granted 
in  trust  for  the  said  Lieutenant-Governor  George  Clarke ;  and 
that,  in  compliance  with  the.  agreement  and  trust,  the  said 
William  Corry,  by  deed  of  release  to  the  said  Lieutenant-Gov- 


38  HISTORY    OF   THE    SUPREME   COURT 

ernor  George  Clarke,  dated  February  18,  1738,  released  to 
the  said  George  Clarke,  his  heirs  and  assigns  forever,  12,700 
acres  in,  and  the  moiety  of  the  said  premises  granted  in,  and 
by,  the  said  grant  or  letters  patent."  52 

Attorney-General  Chatfield  further  averred  that  Corry's  pe- 
tition was  false  and  fraudulent;  that  none  of  the  grantees  had 
ever  removed  from  Ireland;  that  the  names  of  everyone,  ex- 
cept his  own,  had  been  fraudulently  used  by  Corry ;  that  Clarke 
had  concealed  from  the  members  of  the  Council  and  from  the 
Crown  his  own  interest  in  the  transaction ;  that  the  whole  pro- 
ceedings were  a  fraudulent  device  to  evade  the  two-thousand- 
acre  restriction ;  and  that  no  settlers  were  ever  brought  on  the 
land.53 

Sir  William  Johnson's  Methods. 

Another  such  example  of  royal  officials  fraudulently  getting 
or  giving  large  estates  by  exercise  of  their  authority  was 
that  of  Governor  Sir  Henry  Moore,  of  the  Province  of  New 
York.  Herman  Le  Roy,  William  Bayard  and  other  powerful, 
rich  men  claimed  that  they  were  the  owners  of  a  certain  25,- 
ooo  acres  in  the  present  Montgomery  County,  New  York. 
This  land  had  been  claimed  and  improved  by  settlers.  But 
Le  Roy  and  Bayard  could  produce  no  title  papers  of  any  kind ; 
the  records,  according  to  their  assertions,  had  disappeared. 
Not  being  able  to  bring  forward  written  proofs,  they  filed  a 

52  Case  of   People  of  the   State  of   New   York  vs.   George   Clarke, 
Barbour's  Supreme  Court  Reports  (New  York),  Vol.  X:  125. 

53  Ibid.,  120-156.     This  case,  and  other  similar  actions,  were  brought 
at  a  time  following  the  outbreak  of  the  "  Anti-Renters'  War  "  in  New 
York,  when  the  tenants  of  the  great  estates  revolted  against  the  feudal 
customs,    laws    and    exactions    still   prevailing.     In    deciding    the   case, 
November  25,  1850,  Judge  Cady   (who  had  been  put  on  the  bench  by 
the   landholding  class)    did  not  attempt  to  controvert  the  charges  of 
fraud.     He  decided  against  the  State  on  this  ground :     "  It  would  be 
an  alarming  doctrine  to  hold  that  every  man  in  the  State  who  holds 
any  land  under  a  grant  before  the  Revolution,  may  be  turned  out  of 
possession  by  the  plaintiffs,  if  a  king  was  cheated,  who,  one  or  two 
hundred  years  since,  made  the  grant"   (page  152).     Judge  Cady  held 
further  that  the  action  was  outlawed  by  the  statute  of  limitations. 


CONDITIONS    PRECEDING    ITS    ESTABLISHMENT  39 

bill  in  court,  in  1798,  making  this  remarkable  confession  of 
facts  as  justifying  their  claims,  and  disproving  those  of  the 
settlers : 

That,  on  February  2,  1768,  Governor  Moore  officially 
bought  25,000  acres  in  what  is  now  Montgomery  County  for 
the  alleged  use  of  twenty-five  specified  settlers.  But  their 
names  were  really  used  to  evade  the  one-thousand-acre  law ; 54 
the  so-called  settlers  were,  the  bill  charged,  actually  used  as 
dummies  for  Sir  William  Johnson,  and  had  an  agreement 
with  him  by  which  he  paid  all  expenses,  and  by  which  they 
were  to  turn  over  the  25,000  acres  to  him.  Sir  William 
Johnson  paid  upwards  of  £600  in  fees,  and  the  whole  tract 
was  conveyed  to  him  in  fee  simple.55  On  June  n,  1772,  John- 
son, for  £375,  conveyed  10,000  acres  to  Lord  A.  Gordon ;  an- 
other 2,000  acres  to  John  Kelly ;  and  by  his  will,  dated  1774, 
Johnson  bequeathed  the  remaining  13,000  acres  to  his  two 
brothers  and  four  sisters.  Lord  A.  Gordon,  on  December  5, 
1792,  conveyed  the  10,000  acres  to  R.  and  J.  Watts  who,  on 
the  same  day  conveyed  the  tract  to  Herman  Le  Roy  and 
William  Bayard.  The  particular  explanation  of  the  lack  of 
title  papers,  in  this  case,  as  in  similar  cases,  was  that  at  the 
outbreak  of  the  Revolution,  Johnson's  son  buried  the  title 
papers;  that  they  became  lost  or  illegible;  and  that  nine  of 
the  defendants,  knowing  this,  tried  to  get  the  whole  property 
and  title. 

In  deciding  this  case  in  favor  of  Le  Roy,  Bayard  and  the 
other  appellants,  at  Albany,  in  February,  1798,  Judge  Ben- 
son not  only  made  .no  attempt  to  refute  the  plea  made  by  the 
claimants,  Le  Roy  and  Bayard,  of  the  original  fraud,  but  he 
made  light  of  it.  The  supposed  illegality,  said  he,  of  the 
agreement  between  the  original  patentees  and  Sir  Wrilliam 
Johnson  consisted  in  its  being  in  contravention  of  the  instruc- 

54  The  law,  at  this  time,   seems  to  have  limited  the  amount  to  be 
granted  to  any  One  settler  at  not  more  than  1,000  acres. 

55  Johnson's  Cases  (Court  for  the  Trial  of  Impeachments  and  Cor- 
rection of  Errors)   [N.  Y.],  Vol.  I:  417-429. 


4O  HISTORY   OF   THE    SUPREME    COURT 

tions  from  the  king  to  the  governor,  restraining  the  patents 
for  land  to  a  stated  quantity.  "  The  futility  of  this  regula- 
tion," added  Judge  Benson,  "  was  soon  discovered,  and  the 
instruction  was  for  nearly  half  a  century  before  the  patent 
mentioned  in  the  bill  issued  considered  altogether  as  a  dead 
letter,  and  a  compliance  with  it  a  mere  matter  of  form. 
.  .  ."  58  Le  Roy,  Bayard  and  the  other  personages  in  whose 
favor  Judge  Benson  decided  were  men  of  the  greatest  wealth 
and  highest  station  in  the  society  and  politics  of  the  day. 
They  were  intimate  personal  friends  and  close  business  asso- 
ciates of  John  Jay,  the  first  Chief  Justice  of  the  Supreme  Court 
of  the  United  States,  and  as  we  shall  see  in  Chapter  V,  Jay, 
when  special  envoy  of  the  United  States  to  Great  Britain, 
asked  his  friend  Nicholas  Cruger  to  let  Le  Roy  and  Bayard 
share  in  a  certain  "  golden  plan "  for  making  "  millions 
sterling." 

If  Judge  Benson's  premises  were  correct  that  the  law  had 
remained  a  dead  letter,  why  had  the  beneficiaries  taken  such 
pains  to  circumvent  it?  By  the  people  at  large,  Benson's  de- 
cision was  regarded  as  another  skillful  theory  of  justification 
in  behalf  of  the  great  landowners  then  everywhere  seeking 
(and  successfully  so)  to  secure  that  which  had  been  obtained 
by  fraud,  and  to  aggrandize  themselves  still  further.  Judge 
Benson's  vote  in  connection  with  another  notorious  transac- 
tion is  described  later  in  this  work. 

John  Jacob  Astor  Secures  Land  Obtained  by  Fraud. 

A  third  instance  of  the  fraudulent  activities  of  royal  gov- 
ernors in  New  York  in  the  eighteenth  century  was  that  of 
two  grants  in  fee,  one  grant  of  18,000  acres  in  what  was  then 
Albany  County,  on  March  25,  1768,  ostensibly  to  Michael 
Byrn  and  eighteen  others,  and  a  second  grant  of  25,000  acres 

50  Ibid.  It  may  be  observed  here  that  Chancellor  Kent,  that  pre- 
eminent expounder  of  the  all-pervading  rights  of  property,  studied  law 
under  Judge  Benson. 


4i 

on  May  8,  1770,  to  Sir  William  Johnson  and  twenty-five  other 
persons.  A  quarter  of  a  century  later  John  Jacob  Astor  and 
two  associates  contended  in  court  that  not  the  occupying  set- 
tlers but  they  were  the  real  owners  of  these  tracts  of  43,000 
acres.  Astor  and  his  associates  could  not  show  a  single  title 
paper.  In  support  of  their  claim  they  put  forward  these 
"  facts,"  evidently  not  apprehensive  in  the  least  that  such  a 
defense  wo.uld  militate  against  them. 

That,  when  the  two  grants  were  made,  Johnson  paid  all 
the  fees;  that  the  alleged  settlers  were  simply  his  tools,  and 
their  names  were  inserted  for  his  benefit,  with  the  express  in- 
tention of  releasing  to  him  the  whole  of  the  tract,  which,  in 
fact,  was  later  turned  over  to  him  in  fee.  The  appellants  in 
this  case  —  John  Jacob  Astor,  William  Laight  and  Peter  Smith 
—  declared,  through  their  attorney,  Aaron  Burr,57  that  they 
had  a  regular  title  to  the  two  tracts,  one  of  18,000,  the  other 

57  Aaron  Burr,  at  this  time,  was  one  of  the  leading  and  most  adroit 
Republican  politicians  in  New  York  State.  (The  Republican  Party  of 
that  day  was  the  predecessor  of  the  Democratic  Party  of  later  times.) 
Edward  Livingston,  Spencer  (later  Chief  Justice  of  New  York)  and 
other  noted  lawyers  appeared  in  these  cases  for  the  respondents.  Evi- 
dently, there  was  some  conflict  of  great  interests  not  altogether  stated 
in  the  court  records. 

Burr  lived  next  door  to  Astor  at  No.  221  Broadway.  It  was  Burr 
who  consummated  an  adroit  piece  of  business  by  which  Astor  became 
possessed  of  a  lease  of  465  lots  of  land,  of  later  immense  value,  in 
New  York  City.  In  the  year  1767  Trinity  Church  had  leased  these  lots 
for  99  years  to  Abraham  Mortier  at  a  total  annual  rental  of  $269  a  year ; 
the  lots  were  in  the  district  now  bounded  by  Greenwich,  Spring  and 
Hudson  Streets.  Upon  the  initiative  of  Burr,  the  Legislature,  in  1797, 
determined  upon  an  investigation  as  to  how  Trinity  Church  was  expend- 
ing its  income.  Of  all  things  Trinity  Church  wanted  no  investigation 
of  its  affairs.  It  succeeded  in  suppressing  any  actual  inquiry.  Pres- 
ently Burr  turned  up  with  a  transfer  of  the  Mortier  lease  to  himself,' 
and  pledging  it  as  security  he  obtained  a  $38,000  loan  from  the  Man- 
hattan Bank.  When  after  his  duel  with  Hamilton,  Burr  was  forced  to 
flee,  Astor  obligingly  took  this  extraordinarily  valuable  lease  off  Burr's 
hands.  The  lease  covered  land  in  the  business  and  residental  district, 
and  as  the  city  rapidly  grew  and  land  values  tremendously  increased, 
it  was  a  source  of  great  revenue  to  Astor  and  his  descendants. —  For 
the  full  account  with  citations  from  official  records  see  "  History  of  the 
Great  American  Fortunes,"  Vol.  1 :  167-168. 


42  HISTORY   OF   THE    SUPREME    COURT 

of  25,000  acres,  from  Sir  William  Johnson's  executors,  who,  it 
was  set  forth,  had  power  to  sell. 

The  lower  courts  had  decided  in  favor  of  John  Morgan, 
Jonathan  Danforth  and  thirty-three  other  settlers.  As  their 
principal  defense,  when  the  case  came  up  on  appeal,  Astor 
and  his  partners  in  the  transaction  made  the  explanation  that 
early  during  the  Revolution,  Johnson's  papers  were  put  in 
an  iron  box  and  buried  in  the  earth ;  that  there  they  moldered, 
spoiled  and  became  unrecognizable ;  and  that  the  settlers, 
knowing  this,  sought  to  get  title  and  property.  The  decision 
in  the  Court  f6r  the  Trial  of  Impeachments  and  the  Correction 
of  Errors,  at  Albany,  in  February,  1799,  was  in  favor  of 
Astor  and  his  fellow  appellants,  on  virtually  the  same  grounds 
as  in  the  preceding  case.58  The  settlers  were  promptly  dis- 
possessed. 

Also  Plead  Fraud  in  Justification. 

Further  facts  disclosing  official  fraud  and  collusion  in  the 
granting  of  large  estates  came  out  in  the  similar  case  of  Her- 
man Le  Roy,  William  Bayard  and  others  against  Peter  Servis 
and  other  settlers  in  the  same  court,  in  1801,  on  an  appeal 
from  a  decision  in  favor  of  Servis.  The  bill  of  Le  Roy  and 
Bayard  filed  in  court  asserted  in  justification  of  their  claim 
that,  in  1768,  Peter  Servis  and  twenty-four  other  persons  had 
petitioned  Governor  Sir  Henry  Moore  to  buy,  for  their  use, 
25,000  acres  of  land  from  the  Oneida  Indians  in  Albany,  now 
Herkimer,  County.  The  bill  went  on  to  state  that  for  money 
or  other  valuable  considerations,  the  petitioners  agreed  with 
Sir  William  Johnson  that,  on  their  getting  the  25,000  acres, 
they  would  hold  the  same  in  trust  for  him,  and  duly  convey 
the  whole  tract  to  him,  provided  he  paid  all  costs,  etc.  This 
plan  was  carried  out  in  1769,  and  Johnson  got  the  land. 

Le  Roy  and  Bayard  interjected  their  customary  defense, 

68  Johnson's  Cases,  etc.,  Vol.  1 :  429-435. 


CONDITIONS   PRECEDING   ITS   ESTABLISHMENT  43 

namely,  that  after  Johnson's  death,..his  son,  Sir  John  John- 
son, buried  the  papers  so  that  they  "  were  wholly  lost  or  ren- 
dered illegible,"  and  that  Servis  and  his  fellow  settlers,  aware 
of  the  fact,  claimed  the  title,  and  attempted  to  get  the  prop- 
erty for  themselves.  The  higher  court's  decision,  in  Febru- 
ary, 1801,  was  in  favor  of  Le  Roy  and  Bayard,59  and  the  set- 
tlers were  ousted.  These  decisions,  as  will  appear,  have  a 
deep  bearing  on  later  parts  of  this  narrative.  Sir  William 
Johnson  obtained  93,000  acres,  all  told,  by  these  particular 
fraudulent  operations.  At  one  time  Sir  William  Johnson's 
total  estate  was  so  vast  that  he  had  a  domain  "  which  made 
him,  next  to  William  Penn,  the  owner  of  the  most  extensive 
estate  on  the  continent."  G0  Considerable  of  this  area,  as  has 
just  been  described,  came  into  the  possession  of  the  Astor  and 
other  large  landholding  families  of  later  times. 

Landowners  Become  Lawmakers  and  Judges. 

The  great  area  of  land  thus  obtained  by  fraud  enabled  the 
land  magnates  to  set  themselves  up  as  the  exclusive  lawmak- 
ing  and  juridical  class ;  this  fact  furnishes  the  explanation  of 
why  it  was  that,  while  the  officials  and  their  accessories  were 
seizing  land,  they  were  at  the  same  time  passing  laws  provid- 
ing the  severest  punishments  for  fraud  and  other  offenses  on 
the  part  of  the  generality  of  people.  In  a  communication, 
dated  September  20,  1764,  to  the  Lords  of  Trade,  at  London, 
Lieutenant-Governor  Cadwallader  Golden,  of  New  York,  de- 
scribed how  the  land  magnates  had  managed  to  usurp  the  law- 
making  power  by  putting  provisions  in  three  of  the  large  land 
grants  guaranteeing  to  each  Proprietor  the  privilege  of  send- 
ing a  representative  to  the  General  Assembly.  Hence,  these 
landed  proprietors  became  hereditary  legislators.  "  The  own- 
ers of  other  great  patents,"  Golden  further  complained,  "  be- 

50  Caine's  Cases   (Court  for  the  Trial  of  Impeachments  and  Correc- 
tion of  Errors)   [New  York],  Vols.  I-II:  pp.  3-7. 
1)0  Roberts'  "  New  York,"  Vol.  II :  623. 


44  HISTORY   OF  THE   SUPREME   COURT 

ing  men  of  the  greatest,  opulence  in  the  several  American 
counties  where  these  Tracts  are,  have  sufficient  influence  to 
be  perpetually  elected  for  those  counties.  The  General  As- 
sembly, then,  of  this  Province  consists  of  the  owners  of  these 
extravagant  grants;  the  merchants  of  New  York,  the  prin- 
cipal of  them  strongly  connected  with  the  owners  of  those 
great  Tracts  by  Family  interest,  and  of  Common  Farmers, 
which  last  are  men  easily  deluded  and  led  away  with  popular 
arguments  of  Liberty  and  Privileges.  The  Proprietors  of  the 
great  tracts  are  not  only  freed  from  the  quit  rents  which 
the  other  land-holders  in  the  Province  pay,  but  by  their  influ- 
ence in  the  Assembly  are  freed  from  every  other  public  Tax 
on  their  lands."  61 


Lords  Proprietors  of  New  Jersey. 

Virtually  the  same  condition  prevailed  in  all  the  colonies. 
The  whole  of  East  New  Jersey  and  other  parts  at  one  time 
belonged  to  a  syndicate  of  twenty-four  men,  styling  them- 
selves "  The  Lords  Proprietors  of  New  Jersey."  They  pro- 
fessed to  derive  their  title  from  a  sale  made  to  them  in  1681 
and  1682  by  the  widow  of  Phillip  Carteret,  the  first  Proprie- 
tary Governor.  Their  claims  were  recognized  in  law ;  they 
made  large  sums  of  money  in  disposing  of  much  of  the  land ; 
and  before  and  at  the  time  of  the  Revolution  they  were  a 
mighty  financial,  political  and  social  influence  in  New  Jer- 
sey,62 a  fact  which,  as  we  shall  have  reason  to  note,  had  a 
close  relation  to  the  early  composition  of  the  Supreme  Court 
of  the  United  States. 

These  details  give  an  insight  into  the  methods  of  possessing 

61 "  Documents  Relating  to  the  Colonial  History  of  the  State  of 
New  York,"  Vol.  VII :  654-655. 

02  As  late  as  1884  the  descendants  of  these  Proprietors  held  a  reunion 
meeting  in  New  Jersey,  claiming  (but  it  is  not  to  be  supposed  seriously) 
that  their  inherited  rights  as  Proprietors  were  still  valid,  They  pub- 
lished their  proceedings  in  a  pamphlet, 


CONDITIONS    PRECEDING   ITS    ESTABLISHMENT    '  45 

estates  in  the  northern  colonies  and  the  accompanying  estab- 
lishment of  a  landed  aristocracy. 

Extensive  Seizures  in  Carolina  and  Georgia. 

In  Carolina  and  Georgia  —  then  covering  a  vast  extent  of 
territory  included  in  a  number  of  the  present  Southern  States 
—  great  estates  were  likewise  being  acquired  by  fraud. 

Writing  from  Savannah  to  the  Lords  of  Trade,  at  Lon- 
don, April  20,  1763,  Governor  James  Wright  referred  heat- 
edly to  the  "  very  extraordinary  procedure  of  the  Governor 
[Boone]  of  South  Carolina,"  in  allowing  the  monopolization 
by  a  few  of  the  most  valuable  areas  of  land.  "  I  say,  my 
lords,"  Wright  continued,  "  this  procedure  has  struck  a  gen- 
eral damp,  and  dispirited  the  whole  province.  I  have  called 
this,  my  lords,  the  death  or  destruction  of  the  province;  for 
an  extension  of  limits  to  the  southward,  if  the  lands  were 
properly  parcelled  out  to  people  who  would  really  cultivate 
and  improve  them,  would  draw  some  thousand  inhabitants 
here;  whereas,  by  this  step  taken  in  Carolina,  great  part  of 
the  lands,  my  lords,  are  ordered  in  large  tracts  to  some  wealthy 
settlers  in  Carolina,  who  probably  will  never  see  it  themselves, 
and  some  of  whom,  it  is  said,  have  already  more  lands  in  that 
province  than  they  can  cultivate  or  improve. 

"  This,  my  lords,  is  pretty  well  known  on  this  side  of  the 
water;  and  who,  having  a  great  number  of  slaves,  claim  what 
they  call  their  family  right,  that  is,  fifty  acres  of  land  for 
each  slave,  although  it  is  highly  probable  that  their  ancestors 
had  land  for  those  very  slaves,  and  it  is  well  understood  here 
that  many  of  those  persons,  especially  those  who  have  the 
largest  tracts,  have  no  intention  to  remove  there  or  settle 
them ;  but  probably  some  years  hence,  when  it  begins  to  get 
valuable,  will  sell  it,  and  in  the  meantime  those  vast  tracts 
of  land  are  to  lie  waste  and  unimproved,  as  very  great  bodies 
yet  do  in  Carolina,  and  if  they  should  do  anything  at  all 


46  HISTORY   OF   THE    SUPREME    COURT 

with  those  lands,  it  is  expected  that  it  will  only  be  by  send- 
ing an  overseer  and  a  few  negroes  just  to  make  a  trifling  set- 
tlement, seemingly  to  comply  with  the  terms  of  the  grant  or 
by  way  of  taking  possession."  63 

Governor  Wright  estimated  that  Governor  Boone  had 
granted  343,000  acres  to  less  than  two  hundred  persons  — 
many  of  them  British  lords  or  other  speculators  — "  strangers 
who  have  never  contributed  one  farthing  or  one  hour's  fatigue 
or  hardship  toward  the  support  of  the  province."  64  The  343,- 

000  acres  held  by  a  few  recipients  "  would  accommodate  a 
thousand  very  good  families  and  settlers  " ;  hundreds  of  fam- 
ilies were  ready  to  come  from  North  Carolina  but  could  not 
get  land.     Frauds  and  abuses  in  the  survey  of  land  were  very 
numerous. 

Governor  Boone's  Plea  and  Explanation. 

When  called  upon  by  the  Lords  of  Trade  to  explain,  Gov- 
ernor Boone  of  South  Carolina  wrote,  on  August  17,  1763, 
a  long,  abjectly  apologetic  letter,  expressing  his  regrets  at  hav- 
ing committed  and  allowed  abuses.  "  I  hope,  my  lords,"  he 
wrote  in  part,  "  after  what  I  have  said,  that  your  lordships 
will  rather  look  upon  it  as  my  misfortune  than  my  fault  that 

1  have  incurred  your  displeasure."     Claiming  that  he  was  'actu- 
ated by  honest  motives,  he  went  on  to  make  this  invidious, 
significant  and  self -protecting  comparison,  "  I  have  been  Gov- 
ernor of  this  province  above  two  years,  with  as  many,  if  not 
more  opportunities  of  benefiting  myself  than  any  of  my  prede- 
cessors ever  had,  had  I  chose  to  be  remiss  in  my  duty,  as 
I  have  been  strenuous  in  the  practice  of  it."  65     The  Lords  of 
Trade  directed  that  no  extravagant  warrants  for  land  should 
be  issued,  and  tried  to  break  the  large  grants  already  made. 
But  their  instructions  came  too  late ;  the  grants  remained  valid. 

63  "American  State  Papers:  Public  Lands,"  Vol.  I:  55. 

"Ibid. 

«5  Ibid.,  53-54. 


\ 

CONDITIONS    PRECEDING    ITS   ESTABLISHMENT  47 

With  this  resume  of  some  of  the  conditions  under  which 
the  landholding  class  —  the  dominant  class  of  the  Revolu- 
tionary period  —  obtained  its  immense  holdings,  we  shall  now 
proceed  to  consider  the  conditions  formulated  for  the  labor- 
ing, servant  and  slave  classes,  and  the  methods  by  which  an- 
other class  —  the  trading  class  —  acquired  its  wealth,  and  its 
corresponding  political  and  social  sway. 

At  first  the  trading  class  was  largely  identical  with  the 
Patroons,  and  with  the  companies  and  the  manorial  lords  of 
the  other  colonies  who  by  virtue  of  their  charters,  powers 
and  privileges  held  a  monopoly  of  trading.  Even  when  the 
trading  class  began  to  reveal  an  independence  of  the  landed 
class,  the  two  were,  nevertheless,  often  closely  affiliated,  and 
frequently  comprised  the  same  identity  of  interests. 

All  the  conditions,  the  varied  demands  and  contests,  and 
the  laws  and  traditions  put  in  force  by  the  governing  classes, 
as  well  as  the  traditional  subjugation  of  the  working  classes, 
were  later  reflected  in  the  personnel  of  the  Supreme  Court  of 
the  United  States  selected  to  enforce  and  augment  the  powers 
by  which  the  ruling  classes  benefited. 


THE    LABORING,    SERVANT    AND    SLAVE    CLASSES,    AND 
THE  GROWTH  OF  THE  TRADING  CLASS 

While  an  extremely  powerful  and  dictatorial  landed  aris- 
tocracy was  thus  being  created  by  royal  grants  and  official 
favoritism,  or  by  illegal  or  fraudulent  methods,  severe  statutes 
were  enacted  in  all  the  colonies,  the  effect  of  which  was  to 
create  and  perpetuate  a  dependent  and  servile  class  of  workers 
whom  the  laws  differentiated  into  various  menial  classes. 

Punitive  Puritan  Laws. 

The  extraordinarily  profound  piety  ascribed  to  the  Puritan 
fathers  was  accompanied  with  a  series  of  drastic  laws  passed 
by  them  prescribing  the  sharpest  limitations  for  the  many  of 
both  sexes  compelled  to  work  for  wages,  or  for  those  whom 
misfortune,  in  one  way  or  another,  branded  as  defenseless  ob- 
jects of  legal  and  religious  persecutions. 

The  act  of  the  Massachusetts  authorities  in  1630,  passed  in 
response  to  the  self-interested  demands  of  those  who  had  al- 
ready acquired  property  and  who  needed  a  constant  supply 
of  subservient  workers,  was  the  first  measure  in  that  colony 
the  purpose  of  which  was  to  form  a  permanent  class  of  prac- 
tically hereditary  working  people.  This  act,  "  Respecting 
Masters,  Servants  and  Laborers,"  opened  by  decreeing  that  no 
servant  should  give,  or  sell,  any  truck  during  time  of  serv- 
ice without  the  consent  of  masters.  All  workmen,  it  declared, 
should  work  the  whole  day  —  that  is,  as  long  as  they  should 
be  ordered  —  allowing  "  convenient  time  for  food  and  rest." 
Compulsory  adherence  to  their  tasks  was  decreed  by  Section 

48 


THE    LABORING,    SERVANT   AND    S^LAVE   CLASSES  49 

\ 

III.  This  provided  that  if  any  servants  ran  away  from  their 
masters,  the  magistrate  and  two  chief  inhabitants  were  "  to 
press  men  and  boats  or  pinnaces  at  the  public  charge,  to  pur- 
sue such  persons  by  sea  and  land,  and  bring  them  back  by 
force  of  arms."  x  The  next  section  placed  the  question  of 
the  rate  of  wages  exclusively  in  the  power  of  the  masters.  It 
decreed  that  the  freemen  of  the  towns  should  "  agree  amongst 
themselves  about  the  prices  and  rates  of  all  workmen's  labor, 
and  servant's  wages."  To  this  decision,  workman,  laborer 
and  servant  were  to  bind  themselves.  Any  master  paying 
wages  exceeding  the  prescribed  rates  was  to  be  punished  at 
the  discretion  of  the  court.2  Section  V  provided  that  wages 
for  servants  and  workmen  were  to  be  paid  in  corn,  the  value 
of  which  was  to  be  adjudged  by  two  disinterested  freemen, 
one  to  be  chosen  by  the  master,  the  other  by  the  workman  or 
servant.  If  they  could  not  agree  a  third  arbiter  was  to  be  se- 
lected by  the  magistrate.3 

Strict  as  this  act  was,  it  yet  was  not  without  its  gleams  of 
prudent  humanity  —  a  remnant  of  feudal  times  when  the  lot 
of  the  laborer  had  some  necessary  alleviating  phases.  Serv- 
ants flying  from  the  cruelty  of  the  master,  the  act  declared, 
could  be  harbored  by  other  persons  without  being  held  ac- 
countable to  the  law.  But  the  servant  had  to  prove  the  fact 
of  cruelty  before  the  magistrate,  who  invariably  was  a  land- 
owner and  employer  himself. 

And  what  if  any  servant  should  be  maltreated?  This  con- 
soling redress  was  decreed  in  Section  VIII :  That,  "  If  any 
man  smite  out  the  eye  or  tooth  of  his  man  servant  or  maid 

1 "  Ancient  Charters  and  Laws  of  Massachusetts  Bay,  etc.,  Pub- 
lished By  Order  Of  The  General  Court,  1814":  p.  155.  The  word 
"  servant "  as  used  throughout  the  colonies  in  the  seventeenth  and 
eighteenth  centuries  is  by  no  means  to  be  understood  as  being  confined 
to  the  narrower  conception  of  the  domestic  servant  of  to-day.  A  serv- 
ant then  was  not  only  one  who  gave  personal  household  service,  but 
was  bonded  to  perform  many  agricultural  and  other  occupations  for 
manorial  lords,  merchants,  shippers  and  plantation  owners. 

2  Ibid.,  156. 

3  Ibid. 


5O  HISTORY   OF   THE    SUPREME   COURT 

servant,  or  otherwise  maim  or  disfigure  them  (unless  it  be 
by  mere  casualty)  he  shall  let  them  go  free  from  his  serv- 
ice, and  shall  allow  such  further  recompense  as  the  courts  may 
adjudge  him." 4  Appearing,  however,  before  prejudiced 
courts,  it  was  anything  but  easy  for  the  maltreated  servant  to 
prove  that  the  maiming  was  not  done  "  by  mere  casualty  " — 
an  elastic  qualification  under  which  brutal  masters  took 
refuge. 

By  the  next  and  last  section  of  the  act,  faithful  servants, 
after  seven  years'  bonded  service,  were  not  to  be  sent  away 
empty.  But  (and  this  clause  allowed  the  greatest  abuses  and 
impositions)  servants  unfaithful  or  unprofitable  to  masters 
were  not  to  be  freed  until  they  had  made  satisfaction,  accord- 
ing to  the  judgment  of  authority.5 

An  act  adopted  in  Massachusetts  in  1631  forbade  hiring 
any  person  for  less  time  of  service  than  a  year,  unless  he  be 
a  "  settled  housekeeper."  6  The  act  of  September,  1634,  pro- 
hibited the  allotting  of  any  lot  of  land  in  any  plantation  to 
any  servant  "  till  he  hath  approved  his  faithfulness  to  his  mas- 
ter during  his  time  of  service."  7  In  December,  1636,  an  act 
was  passed  in  the  same  colony  decreeing  that  no  servant  should 
be  set  free  until  he  had  served  out  the  covenanted  time ;  the 
penalty  for  infraction  was  to  be  set  by  the  quarter  courts.8 
This  act  also  declared  that  no  servant  was  eligible  to  any  of- 
fice.9 The  Massachusetts  act  of  1642  decreed  that  all  unruly 
poor  children  were  to  be  bound  out  for  service,  and  the  act 
of  the  Massachusetts  General  Court,  in  1720,  provided  that 
all  children  of  the  poor,  whether  their  parents  received  alms 
or  not,  and  whose  parents  were  unable  to  maintain  them,  were 
to  be  set  to  work  or  bound  out  by  the  selectmen  or  overseers 
—  the  male  children  until  they  were  twenty-one,  and  the  fe- 
males until  eighteen,  years  old. 

*  Ibid.  i  Ibid. 

B  Ibid.  *  Ibid.,  429. 

0  Ibid.,  Appendix,  p.  711.  8  Ibid. 


THE   LABORING,    SERVANT   AND    SLAVE   CLASSES  51 

Feudal  Conditions  Transplanted. 

The  Connecticut  laws  were  similar  to  those  of  Massachu- 
setts. The  Rhode  Island  code  of  1647  provided  that  the  ar- 
tificer or  laborer  must  finish  any  work  agreed  upon  and  not 
depart  unless  it  were  that  his  wages  had  not  been  paid.  If 
he  quitted  work  he  forfeited  £5  to  his  employer,  who  could 
recover  in  court  by  an  action  for  debt.10  In  the  province  of 
New  Netherlands  —  later  New  York  and  New  Jersey  —  dis- 
tinctly feudal  conditions  copied  from  those  in  the  monarchies 
of  Europe  prevailed.  Under  the  act  of  1629,  elaborated  by 
that  of  1653,  °f  tne  States  General  of  Holland,  any  adventurer 
who  shipped  over  a  certain  number  of  adults  received  ex- 
tensive grants  of  land,  with  feudal  rights  of  proprietorship. 
These  exported  peasants  became  his  vassals.  The  power  of 
the  Patroons  —  as  the  manorial  lords  under  Dutch  control 
were  styled  —  over  their  tenants  or  serfs  was  almost  unlim- 
ited. The  law  ordained  that  no  man  or  woman,  son  or  daugh- 
ter, man  servant  or  maid  servant  could  leave  a  Patroon's  serv- 
ice during  the  time  that  they  had  agreed  to  yield  service; 
and  no  infraction  of  this  law  was  permitted,  no  matter  how 
gross  the  abuses  or  breaches  of  contract  the  Patroon  com- 
mitted. 

These  laws  were  variously  ratified  and  increased  under  Brit- 
ish rule.  By  an  act  passed  in  New  York,  October  22,  1684, 
against  "  Fugitive  Servants  And  Their  Entertainers,"  it  was 
provided  that  if  any  servant,  depart  or  absent  himself  from 
his  master's  service,  he  or  she  should  be"  adjudged  to  pay 
the  penalty  of  being  forced  to  ser-ve  double  their  time  in  fu- 
ture service  to  the  master.11  The  bonding  of  impoverished 
boys,  girls  and  adults  in  England  and  in  America  for  long- 
term  services  to  the  American  manorial  lords  and  merchants 
was  a  fixed  condition. 

10  "  Rhode  Island  Colonial  Records,  1636-1663,"  Vol.  1 :  183-184. 
11 "  Laws  of  The  Colony  of  New  York":  147. 


52  HISTORY   OF   THE    SUPREME    COURT 

The  grandiose  feudal  lord  of  the  manor  was  not  only  the 
proprietor  of  the  soil,  but  for  a  long  time  he  was  the  domi- 
nant manufacturer  and  trader,  and  the  mass  of  people  were 
his  retainers  or  tenants.  He  owned  and  exported  the  furs 
gathered  on  his  extensive  domain,  as  also  the  timber  for 
which  (that  being  entirely  a  sailing-ship  era)  there  was  an 
immense  demand  both  in  Europe  and  America.  He,  too,  .had 
control  over  the  inland  river  fisheries,  and  all  other  natural 
resources.  He  had  his  stores,  his  bakery,  his  flour  mills,  saw 
mills  and  brewery.  Tenants  were  forced  by  him  to  sign  cov- 
enants that  they  would  trade  nowhere  else  but  at  his  stores  and 
mills.12 

His  dominion,  therefore,  was  one  of  arbitrary  control  over 
his  dependents  and  he  exacted  their  produce  at  will. 

The  perpetuation  of  a  completely  subordinated  laboring 
class  in  Pennsylvania  under  Quaker  rule  was  likewise  insured 
by  strict  laws.  An  act  passed  by  the  General  Assembly  in 
Pennsylvania,  in  1700,  "  for  the  better  regulation  of  servants 
in  this  province  and  territories  "  declared  that  "  for  the  just 
encouragement  of  servants  in  the  discharge  of  their  duties, 
and  for  the  prevention  of  their  deserting  their  masters,"  no 
servant,  bound  to  serve  time,  should  be  sold,  or  disposed  of, 
without  the  consent  of  the  said  servant.  Violation  of  this 
law  was  to  entail  a  penalty  of  £10,  to  be  forfeited  by  the 
seller.  Nor  was  any  servant  to  be  assigned  by  one  master 
to  another,  under  the  same  penalty.13  Every  servant  faith- 
fully serving  four  years  or  more,  was  to  have  a  discharge  "  at 
the  expiration  of  their  servitude,"  and  —  the  act  generously 
read  on  — "  shall  be  duly  clothed  with  two  compleat  suits  of 
apparel,  whereof  one  shall  be  new,  and  shall  also  be  furnished 
with  one  axe,  one  grubbing-hoe,  and  one  weeding-hoe,  at  the 
charge  of  their  master  or  mistress."  14 

12  For  a  fuller  description  see  "The  History  of  the  Great  American 
Fortunes,"  Vol.  I.,  Chaps,  i,  2  and  3. 

13  Carey  and  Bioren's  "  Pennsylvania  Laws,  1700-1770,"  Vol.  1 :  14-16. 
i*  Ibid. 


THE    LABORING,    SERVANT   AND   SLAVE   CLASSES  53 

Quaker  Methods  of  Disciplining  the  Workers. 

The  quitting  by  servants  of  their  master's  service  was  pro- 
hibited by  Section  IV  of  the  same  act,  which  enacted  that  if 
any  servant  absented  himself  or  herself  from  service  for  one 
day  or  more  without  consent,  he  should  be  obliged  to  serve 
five  additional  days  to  his  .or  her  indentured  term  of  service 
for  each  day  of  absence,  and  that  after  the  expiration  of  the 
term  of  servitude  the  courts  were  to  give  the  master  dam- 
ages.15 Inasmuch  as  few  servants  had  any  money  after  their 
long  term  of  services,  this  meant  that  in  lieu  of  damages  they 
had  to  yield  extra  servitude. 

The  regulations  for  keeping  servants  in  submission  were  so 
onerous,  and  their  enforcement  so  tyrannous,  that  the  practice 
of  servants  running  away  had  become  general.  Section  V 
made  provision  for  this.  Whoever  apprehended  any  fugitive 
servant  within  ten  miles  of  the  master's  abode  and  delivered 
the  runaway  to  the  Sheriff,  was  to  receive  a  reward  of  ten 
shillings ;  within  twenty  miles,  twenty  shillings,  and  thus  on 
with  a  graduated  list  of  rewards.16  The  section  following 
forbade  the  clandestine  employing  of  other  men's  servants. 
Section  VII  was  designed  "  for  the  more  effectual  discour- 
agement of  servants  embezzling  their  masters'  goods." 
Servants  who  were  not  paid,  or  were  ill  treated,  frequently 
ran  away,  taking  such  necessary  articles  of  apparel  or  other 
goods  as  they  needed.  The  master  made  a  charge  of  embez- 
zlement. By  the  provision  of  Section  VII  the  buyer  of  the 
goods  was  to  pay  back  double  value  to  the  master,  and  the 
servant  was  required  to  make  satisfaction  by  servitude  after 
the  expiration  of  his  or  her  time,  to  double  the  value  of  the 
goods.  If  he  were  a  black  servant,  he  was  to  be  severely 
whipped.17 

15  Ibid.     The  word  servitude  is  the  exact  word  used  in  the  colonial 
laws. 
»•  Ibid. 
17  Ibid. 


54  HISTORY   OF   THE    SUPREME    COURT 

Maryland  Statutes  of  Bondage. 

Equally  strong,  although  in  different  respects,  were  the 
laws  of  Roman  Catholic  Maryland.  Chapter  XIX,  of  the 
Maryland  law  of  April,  1715,  prohibited,  under  heavy  penal- 
ties, masters  of  ships  or  vessels,  or  any  other  person,  from 
conveying  away  runaway  servants  who  were  under  bond  or 
bail.  Any  person  enticing  away  a  servant,  apprentice  or 
slave  was,  for  each  offense,  to  forfeit  to  the  owner  treble 
damages  and  costs  for  the  time  the  servant,  apprentice  or 
slave  was  missing.18  The  Act  of  May,  1748,  repeated  and 
amplified  the  provisions  of  the  act  of  1715;  it  decreed  a  pen- 
alty of  one  hundred  pounds  of  tobacco  for  every  hour  of 
harboring  fugitive  slaves  or  servants ;  the  offender  was  to  be 
lashed  on  the  bare  back  not  more  than  thirty-nine  stripes  for 
each  offense,  and  servants  harboring  other  servants  were  to 
receive  the  same  number  of  lashings. 

No  servant,  whether  working  for  wages  or  indenture, 
should,  according  to  the  provisions  of  Chapter  XLIV,  Act  of 
April,  1715,  travel  more  than  ten  miles  from  the  master's 
house  without  a  note  from  the  master,  mistress,  dame  or 
overseer,  or  else  be  liable  to  penalties  as  a  runaway.10  For 
being  unlawfully  absent  from  the  master's  service,  the  serv- 
ant or  laborer  was  to  give  ten  days  additional  service  for  each 
day's  absence,  and  to  pay  costs.  Anyone  apprehending  a 
runaway  servant  or  slave  was  to  get  a  reward  of  two  hundred 
pounds  of  tobacco  from  the  owner.  No  person  was  allowed 
to  trade  or  barter  with  a  servant  under  penalty  of  two  thou- 
sand pounds  of  tobacco;  goods  thus  bartered  were  to  be  re- 
covered, and  the  offender  was  punishable  by  a  lashing  of  thirty 
stripes  upon  the  bare  back.20  A  provision  especially  satis- 
factory to  the  rich  planters  was  that  all  servants  imported 

18  "Laws  of  Maryland,"  etc.  (Edition  of  1799),  Vol.  I.    This  volume 
is  not  paged. 
i»  Ibid. 
20  Ibid. 


THE   LABORING,   SERVANT  AND   SLAVE   CLASSES  55 

without  articles  of  indenture  were  to  serve  these  terms  of 
servitude  (service)  : 

Servants  more  than  twenty-two  years  old  to  serve  five 
years;  those  between  eighteen  and  twenty-two  years  old  to 
serve  six  years;  those  between  fifteen  and  eighteen  years  old 
to  serve  seven  years;  and  all  under  fifteen  years  old  were  to 
serve  until  they  were  twenty-two  years  old.21  Inasmuch  as, 
with  the  connivance  of  the  authorities,  a  regular  traffic  was 
carried  on  by  procurers  in  kidnaping  men,  women  and  chil- 
dren under  various  pretenses  from  Europe  to  the  colonies,  the 
significance  of  this  statute  can  be  seen  at  a  glance.  A  white 
woman  having  a  child  by  a  negro  was,  if  a  free  woman,  to 
serve  seven  years  in  servitude;  and  if  she  were  a  servant  an 
additional  seven  years.  Any  white  man  doing  likewise  with 
a  negress  was  to  undergo  the  same  penalties.22  Free  persons 
and  servants  (white  laborers)  could  not  be  married  without 
the  express  approval  of  master  or  mistress ;  the  laws  long  kept 
the  sharpest  distinction  between  free  whites,  on  the  one  hand, 
and  bonded  whites  and  whites  of  compulsory  servitude,  on 
the  other.  During  the  very  period  of  the  Revolution  —  seven 
months  after  the  adoption  of  the  Declaration  of  Independence 
asserting  that  all  men  were  born  free  and  equal  —  the  General 
Assembly  of  Maryland,  in  February,  1777,  passed  an  act 
Chapter  XII  of  which  prohibited  ministers,  under  penalty  of 
£50  from  marrying  a  free  person  and  a  servant  without  the 
consent  of  master  or  mistress.23 

The  drafters  of  the  Maryland  act  of  1715,  strained  them- 
selves, we  may  assume,  to  the  utmost  in  inserting  provisions 
placing  the  following  restrictions  upon  the  masters : 

If  they  did  not  feed  or  take  sufficient  care  of  servants  by 
allowing  needed  rest,  or  if  they  taxed  any  servant  beyond  his 
strength,  they  were  to  pay  a  penalty  for  each  offense  dot  ex- 
ceeding one  thousand  pounds  of  tobacco.  For  any  one  of- 
fense the  master  could  give  the  servant  ten  lashes;  this  was 

**Ibid. 


56  HISTORY   OF  THE   SUPREME   COURT 

legal;  but  if  he  gave  more,  he  was  subject  to  the  same  pen- 
alty.24 

The  same  law  provided  most  munificently  what  the  servant 
should  receive  after  his  long  period  of  servitude.  At  dis- 
charge the  master  was  to  give  each  servant  a  new  hat,  a  good 
suit,  a  new  pair  of  shoes,  two  hoes  and  one  ax,  and  one  gun  of 
twenty  shillings  price.  Failing  to  do  this,  the  master  was  to 
pay  a  penalty  of  five  hundred  pounds  of  tobacco.25 

Lords  and  Vassals  in  Virginia. 

Extensive  baronial  domains  and  large  estates  in  Virginia 
were  procured  by  British  nobles,  adventurers,  companies, 
planters  and  military  officers  with  such  facility  that  the  most 
pressing  necessity  there,  as  elsewhere,  was  a  permanent  sup- 
ply of  workers  to  hew  the  forests,  cultivate  the  arable  soil, 
man  the  ships  and  otherwise  develop  and  distribute  the  re- 
sources. The  exportation  from  England  of  poor  whites,  con- 
victed of  one  or  another  of  the  trivial  offenses  then  punished 
so  severely  in  British  law,  supplied  a  portion  of  this  demand 
and  kidnaping  another  part.  The  enslavement  of  Indians 
and  negroes  furnished  the  remainder. 

The  Virginia  act  of  1670  declared  that  all  servants,  not 
Christians,  imported  into  Virginia  by  shipping,  should  be 
slaves  for  life,  but  that  those  coming  by  land  should  serve  for 
a  limited  time.  This  statute  seems  to  have  applied  to  ne- 
groes, to  Indians  from  other  provinces,  and  even  to  white  con- 
victs.26 The  acts  of  1672,  1679  and  1685,  distinctly,  as  we 
have  seen,  validated  the  enslavement  of  Indian  captives.  The 
long  continuing  enslavement  is  evidenced  by  the  fact  that  as 

24  "Laws  of  Maryland,"  etc.  (Edit,  of  1799),  Vol.  I. 


26  We  have  seen  how  the  Virginia  general  land  laws  of  1705  allowed 
planters  to  acquire  free  lands  in  proportion  to  the  number  of  servants 
or  slaves  owned.  The  more  slaves  or  servants,  the  greater  the  area  of 
land  granted, 


THE   LABORING,    SERVANT   AND   SLAVE   CLASSES  57 

late  as  1793  the  case  (Footnote  37,  Chap.  I),  of  Coleman  vs. 
Dick  and  Pat  was  before  the  Virginia  Court  of  Appeals  for 
the  determination  of  the  question  whether  Indians  could  be 
held  as  slaves.  On  that  occasion  the  court  held,  as  we  have 
stated,  that  a  statute  passed  in  1705  was  a  complete  repeal  of 
the  acts  of  1672,  1679  and  1685,  "  and  since  that  period  no 
American  Indian  can  be  reduced  to  a  state  of  slavery."  But, 
added  the  court,  "  foreign  Indians  coming  within  the  descrip- 
tion of  that  act,  might  be  made  slaves."  "  The  president  of 
the  Virginia  Court  of  Appeals  at  this  time  was  the  same  Ed- 
mund Pendleton  who  was  one  of  the  promoters  of  the  Loyal 
Company  which  had  obtained  a  grant  of  800,000  acres  of  land 
and  which  had  enriched  itself  by  a  succession  of  fraudulent 
operations. 

The  conditions  tinder  which  bonded  white  laborers,  and 
Indian  and  negro  slaves  toiled  were  not  invariably  hard ; 
here  and  there  a  humane  and  generous  master  was  to  be  found, 
but  he  was  a  very  rare  exception.  So  oppressive  was  the  lot 
of  the  servant,  laborer  and  slave,  on  the  whole,  that  at  the 
first  opportunity  a  desperate  flight  for  freedom  was  made. 
To  prevent  this,  severe  laws  were  passed  in  Virginia  exceed- 
ing in  harshness  those  in  other  colonies. 

The  Virginia  act  of  1748  (22  George  II,  Cap.  17)  offered 
rewards  in  specified  sums  to  those  catching  fugitive  seamen.28 
Any  person  harboring  a  servant  who  lacked  the  necessary 
certificate  attesting  that  his  time  of  servitude  had  expired, 
was  required  to  pay  the  owner  thirty  pounds  of  tobacco,  with 
costs,  for  every  day  the  runaway  was  sheltered.29  The  same 
act  decreed  that  if  a  runaway  servant  used  a  forged  certificate 
he  was  to  stand  for  two  hours  in  a  public  pillory ;  as  for  the 
forger  he  was  to  forfeit  £10  with  costs,  failing  to  pay  which 
he  was  to  receive  thirty-nine  lashes  on  the  bare  back,  "  well 

27  Washington's  Virginia  Reports  (Court  of  Appeals),  Vol.  I:  239. 

28  "Virginia  Laws"  (Edition  of  1759),  p.  314. 
20  Ibid. 


58  HISTORY  OF   THE   SUPREME  COURT 

laid  on  "  at  the  common  whipping  post.30  If,  after  the  arrest 
of  runaway  servants,  white  or  negro,  no  owner  appeared  at 
the  gaol  after  a  stated  time,  an  iron  collar  was  to  be  put  by 
the  keeper  of  the  gaol  on  the  servant's  neck,  marked  with  the 
letters  "  P.  G."  at  the  time  the  servant  was  delivered  to  the 
person  hiring  him.31 

Slaves  Dismembered  with  Impunity. 

Section  XXXV  of  the  same  act  was  extremely  ferocious. 
It  decreed  that  in  the  case  of  any  slave  notoriously  guilty  of 
going  abroad  at  night,  or  running  away  and  lying  out  and 
"who  cannot  be  reclaimed  from  such  disorderly  courses  by 
common  methods  of  punishment"  (whipping  and  imprison- 
ment), the  court  could  order  such  a  reprobate  "  to  be  punished 
by  dismembering,  or  any  other  way  not  touching  life,  as  they 
shall  think  fit ;  and  if  such  slave  shall  die  by  means  of  such 
dismembering,  no  forfeiture  or  punishment  shall  be  thereby 
incurred."  32 

The  Virginia  act  of  1753  (22  George  II,  Cap.  7)  altered 
and  extended  some  of  the  previous  laws.  By  this  act,  all 
servants  (except  convicts),  who  had  been  imported  without 
articles  of  indenture,  were  to  serve  a  period  of  servitude  of 
not  more  than  five  years.  Every  owner  was  obliged  to  care 
for  sick  or  lame  servants  during  the  whole  period  of  service. 
If  servants  did  not  obey  their  owners'  "  just  and  lawful  com- 
mands, and  resist  or  offer  violence  to  master,  mistress  or 
overseer,"  a  year  more  of  servitude  was  to  be  added  for  each 
offense.  In  cases  of  violations  of  penal  laws  in  which  free 
persons  were  punishable  by  fine,  servants  were  to  be  pun- 
ished by  whipping,  "  after  the  rate  of  twenty  lashes  for  every 
five  hundred  pounds  of  tobacco  or  fifty  shillings  current 

so  "  Virginia  Laws"  (Edition  of  1759),  p.  314. 

31  Ibid.,  316.    The  meaning  of  the  letters  "  P.  G."  is  not  stated  in  the 
statute. 
?2  Ibid.,  319. 


THE   LABORING,    SERVANT   AND   SLAVE   CLASSES  59 

money."     But  no  servant  was  to  get  more  than  forty  lashes 
at  one  time.33 

After  having  served  their  years  of  laborious  servitude, 
the  servants,  men  and  women,  were  cold-bloodedly  turned  out 
in  an  impoverished  condition,  with  nothing  more  than  a  few 
articles  allowed  by  law,  and  perhaps  a  few  bits  of  money ;  but 
money  was  scarce,  tobacco  largely  being  used  in  Maryland 
and  Virginia  as  currency.  Frequently  during  their  terms  of 
service,  servants  were  forced  to  undergo  a  change  of  masters, 
at  least  in  Virginia ;  when  planters  fell  in  debt  it  was  common 
for  them  to  sell  their  land  and  servants.34  The  most  vigorous 
part  of  the  laborer's  life  was  given  in  compulsory  service  to 
the  master ;  and  usually  after  the  expiration  of  his  term  of 
servitude,  his  vitality  was  impaired,  and  he  had  no  means  of 
securing  subsistence.  In  custom  and  law  he  occupied  a  de- 
graded position,  from  which  in  the  South,  at  least,  is  derived 
the  old  contemptuous  sneer  at  "  white  trash."  The  best  and 
most  valuable  lands  in  the  accessible  portion  of  the  country 
had  already  been  preempted  by  adventurous  individuals, 
manorial  lords  or  planters  who  had  acquired  them  by  the 
means  described  in  the  foregoing  chapter.  The  poor  white 
owned  nothing  to  speak  of,  and  was  virtually  allowed  to  own 
nothing;  his  situation  was  a  dire  one. 

Houses  of  Correction  and  Workhouses. 

The  inevitable  consequence  wasxa  quick  and  direct  creation 
of  a  destitute  class.  Many,  incapable  of  working  longer,  or 
filled  with  great  repulsion  because  of  their  hard  labor  under 
servitude,  wandered  pathetically  about  and  became  what  were 
called  vagabonds;  others  took  to  theft  or  drink;  still  others 
to  begging;  and  the  prostitution  of  women  was  early  in  evi- 
dence. How  did  the  lawmakers  meet  these  conditions? 

They  began  to  establish  houses  of  correction   and  work- 

33  Ibid.,  pp.  326-329. 

84  So  stated  in  a  broadside  published  at  the  time. 


6O  HISTORY    OF   THE    SUPREME    COURT 

houses.  By  the  Massachusetts  act  of  1646,  houses  of  cor- 
rection were  ordered,  and  magistrates  were  required  to  com- 
mit to  those  institutions  runaway  servants,  "  idle  persons, 
common  drunkards  and  common  night  walkers,"  and  to  pro- 
vide materials  of  work.35  The  act  of  1699  of  the  same  colony 
made  more  effective  provision  for  houses  of  correction  and 
workhouses,  and  the  putting  to  work  in  those  institutions  of 
"  rogues,  vagabonds,  common  beggars  and  other  lewd,  idle 
and  disorderly  persons."  For  such  as  were  stubborn  and  de- 
clined to  work,  ten  lashes  or  a  starvation  diet  were  pre- 
scribed.36 

The  Massachusetts  act  of  1720,  as  we  have  seen,  compelled 
the  setting  to  work,  or  the  bonding  out,  of  all  children  of  the 
poor.  The  New  Hampshire  act  of  13  Anne  decreed  that  any 
Indian,  negro  or  mulatto  servant  found  abroad,  without  satis- 
factory excuse,  after  nine  o'clock  at  night  was  to  be  locked  up 
in  the  house  of  correction,  and  returned  to  the  master  next 
morning.  If  the  arrest  happened  to  be  in  a  place  where  there 
was  no  house  of  correction,  then  a  lashing  of  ten  stripes  was  to 
be  given  by  the  constable  in  place  of  imprisonment.37  The 
Connecticut  laws  approximated  those  of  Massachusetts  and 
New  Hampshire.  The  Rhode  Island  code  of  1647  ordered 
each  town  to  provide  for  the  relief  of  the  poor,  maintain  the 
impotent,  and  employ  the  able  under  an  overseer.38  But  an 
order  followed  three  years  later  —  in  1650  —  requiring  that 
any  man  not  having  more  than  £5  could  be  adjudged  a  pauper, 
and  treated  legally  as  a  pauper.39 

The  acts  of  Pennsylvania  of  May  31,  1718,  August  19,  1749, 
and  those  of  other  years  dealt  with  the  establishment  of 
measures  for  the  relief  of  the  poor.  Beginning  with  a  pre- 

35  "  Ancient  Charters  and  Laws  of  Massachusetts  Bay,"  etc.,  178. 
so  Ibid.,  334-338. 

87 "  New  Hampshire  Acts  And  Laws"  (Fowler's  Edition  of  1761), 
p.  41. 

38  "  Rhode  Island  Colonial  Records,  1636-1663,"  Vol.  1 :  184-185. 

39  Ibid.,  227. 


THE    LABORING,    SERVANT   AND   SLAVE   CLASSES  6l 

amble  that  the  poor  within  the  city  of  Philadelphia  and  ad- 
jacent parts  "  are  becoming  very  burthensome  and  expensive 
to  the  inhabitants,"  the  Pennsylvania  act  of  February  8,  1766, 
incorporated  a  society  to  be  called,  "  Contributors  to  the  Re- 
lief and  Employment  of  the  Poor  in  the.  City  of  Philadel- 
phia." 40  The  same  act  tells  that  whereas  "  great  numbers 
of  rogues,  vagabonds  and  other  idle  and  dissolute  persons 
frequently  come  from  the  neighboring  provinces  to  the  said 
city,  without  following  any  labor,  trade  or  business,  or  hav- 
ing any  visible  means  of  subsistence,  and  are  not  only  dan- 
gerous members  of  society,  but  in  the  end  become  burthen- 
some  to  the  Publick  " —  therefore,  they  are  to  be  committed 
to  the  House  of  Employment  to  be  kept  at  hard  labor  for 
three  months.41 

Early  in  the  settlement  of  New  York,  the  idle  and  beggars 
became  so  numerous,  that  acts  were  passed  on  November  i, 
1683,  and  on  May  13,  1691,  providing  poorhouses  for  the 
maintenance  of  the  poor  and  for  the  preventing  of  "  vaga- 
bonds, beggars,  idle  persons,  and  those  without  manual 
crafts  " ;  these  laws  made  a  special  provision  for  beggars,  re- 
quiring their  deportation  to  towns  from  which  they  came.42 

Badges  of  Degradation  for  the  Poor. 

But  of  all  the  colonies,  the  poor  laws  of  Virginia,  as  in  the 
case  of  servants  and  slaves,  were  the  harshest.  The  poor 
were  forced  to  wear  the  most  humiliating  and  visible  tokens 
of  their  degrading  poverty.  The  act  of  1748  (22  George  II, 
Cap.  i,  sect.  5)  turned  the  poor  over  to  the  supervisor  of  the 
church  parishes  which  were  required  to  build  houses  for  their 

40  Carey  and  Bioren's  "  Pa.  Laws,  1700-1770,"  Vol.  1 :  417-419. 

41  Ibid.,  423-424.     The  succeeding  law  of  March  9,  1771,  said  that  the 
laws  theretofore   enacted  had   not  answered   "  the  good  purposes   ex- 
pected."—  Ibid.,  Vol.  II:  i. 

*-  "  Laws  of  The  Colony  of  New  York,"  pp.  131  and  237.  The  pres- 
ence of  beggars  entailed  expense  and  annoyance;  accordingly  each  town 
sought  to  rid  itself  of  them  by  driving  them  from  its  limits. 


62  HISTORY    OF   THE    SUPREME    COURT 

lodging  and  employment.  The  parishes  were  to  provide  cot- 
ton, hemp,  flax  and  other  materials  for  the  setting  -of  the 
poor  at  work.  If  inmates  did  not  behave  according  to  the 
rules,  or  were  refractory,  corporal  punishment  was  to  be 
administered,  not  exceeding  ten  lashes  at  a  time  for  each  of- 
fense. The  vestries  were  allowed  to  dispose  of  the  profits 
of  the  poor's  work,  and  were  to  be  held  accountable. 

By  this  law  every  such  poor  person  was  compelled  "  in  an 
open  and  visible  manner  "  to  wear  on  the  right  sleeve  of  his 
or  her  upper  garment  a  badge  with  the  name  of  the  parish  (to 
which  he  or  she  belonged)  cut  in  blue,  red  or  green  cloth. 
If  the  poor  under  supervision  neglected  or  refused  to  obey, 
the  church  warden  could  punish  by  abridging  the  allowance 
of  the  offender  to  the  slimmest  possible  diet,  and  apply  not 
more  than  five  lashes  at  one  time  for  each  offense.  This  act 
was  to  be  enforced  in  all  of  the  courts.43 

Violations  of  laws  prohibiting  the  acquiring  or  conveying 
of  land  by  fraud  entailed,  as  we  have  seen,  only  a  nominal 
money  penalty.  Not  often,  of  course,  were  these  laws  en- 
forced ;  the  officials  who  made,  interpreted  and  enforced  them 
were  mainly  themselves  involved  in  the  grossest  land  frauds, 
or  their  influential  friends  were.  Before  the  Revolution, 
judges  in  some  of  the  colonies  received  no  fee  or  reward; 
they  were  composed  exclusively  of  manorial  lords  and  other 
men  of  fortune  and  estates.  When  destitute  workers  re- 
sorted to  theft  they  were  punished  under  a  code  of  the  most 
barbaric  laws  designed  to  protect  the  property  of  the  possess- 
ing class. 

Barbaric  Punishment  for  Offenses. 

For  burglary  or  robbing  from  any  house  or  from  any  per- 
son on  the  highways,  the  Massachusetts  act  of  1642  imposed 
these  penalties: 

43 ''Virginia  Laws"  (Edition  of  1759),  pp.  282-286. 


THE   LABORING,    SERVANT   AND   SLAVE    CLASSES  63 

\ 

For  the  first  offense  the  letter  B  was  to  be  branded  on  the 
offender's  forehead ;  he  was  to  be  again  branded  and  severely 
whipped  for  the  second  offense;  and  for  the  third  he  was  to 
be  put  to  death.  If  the  crime  were  committed  on  the  Sabbath 
he  was,  in  addition  to  branding,  to  suffer  one  ear  to  be  cut 
off  for  the  first  offense;  the  second  offense  was  to  entail  the 
cutting  off  of  the  other  ear;  and  death  was  to  be  the  penalty 
for  the  third  offense.44  The  act  of  1692  provided  branding 
for  the  first  offense ;  for  the  second,  the  culprit  was  to  be  set 
upon  the  gallows,  neck  in  rope  for  an  hour,  and  thirty-nine 
lashes  were  to  be  given.  The  third  offense  brought  death.45 
Theft  increased  in  Massachusetts,  and  the  act  of  1715,  en- 
tailing the  death  penalty,  was  intended  to  decrease  crime.40 
But  it  had  no  such  effect.  In  1770  an  act  was  passed  impos- 
ing death  without  benefit  of  clergy  for  entering  a  dwelling 
house  at  night  with  intent  to  steal.47  The  Rhode  Island  code 
of  1647  decreed  death  for  burglary  committed  by  all  more 
than  fourteen  years  of  age.  But  the  qualification  was  added 
that  this  clause  did  not  extend  to  "  poor  persons  that  steale 
for  Hunger,  nor  to  fooles,  nor  to  madd  men."  In  the  cases 
of  such  persons  as,  also,  in  the  cases  of  those  under  fourteen 
years  old,  the  crime  was  held  to  be  larceny.48 

What  was  the  punishment  for  larceny?  For  the  petty  lar- 
ceny of  goods  not  exceeding  twelve  pence,  the  offender  was 
to  be  "  well  whipt "  for  the  first  offense ;  for  the  second  he 
was  to  serve  two  months  in  the  House  of  Correction  and  be 
twice  whipped. 

Grand  larceny  included  the  theft  of  anything  more  than 
twelve  pence  in  value.  The  first  offense  brought  a  severe 
whipping,  and  a  term  in  the  house  of  correction.  The  sec- 

44  "  Ancient  Charters  and  Laws  of  Massachusetts  Bay,"  etc.,  p.  56. 

43  Ibid.,  239. 

40  Ibid.,  407.- 

« Ibid.,  669. 

48  "Rhode  Island  Colonial  Records,  1636-1663,"  Vol.  I:  167.  This  act 
was  an  explicit  admission  that  many  of  the  poor  were  compelled  to 
steal,  driven  to  it  by  hunger.  Begging  and  other  such  crimes  were 
generally  prompted  by  the  same  incentive  of  self-preservation. 


64  HISTORY  OF  THE   SUPREME   COURT 

oncl  resulted  in  branding  in  the  hand,  and  a  sentence  of  im- 
prisonment until  the  convicted  person  paid  twice  the  amount 
to  the  party  wronged,  and  four  times  the  sum  to  the  Colony  40 
—  which,  assuredly,  he  never  could. 

The  Quaker  punishment  for  larceny  in  Pennsylvania  was 
very  much  the  same  as  that  of  the  New  England  Puritans. 
Section  XXIX  of  the  Pennsylvania  act  of  1718,  "  for  the  ad- 
vancement of  justice,"  enacted  that  for  larceny,  first  offense, 
the  offender  must  restore  goods  or  chattels,  pay  the  costs  of 
the  prosecution,  go  to  jail,  and  be  publicly  whipped  on  the 
bare  back  with  stripes  "  well  laid  on,  not  exceeding  twenty- 
one."  The  second  offense  brought  the  same  penalties,  with 
a  public  whipping  of  from  twenty-five  to  forty  stripes.50 

Imprisonment  of  Debtors. 

Such  are  some  examples  of  the  laws  in  the  various  colo- 
nies. But  other  laws  in  force  bore  heavily  on  the  wage  work- 
ing laborer.  In  all  the  colonies  laws  were  passed  and  en- 
forced for  the  imprisonment  of  debtors.  These  laws  were 
not  in  so  many  words  specifically  directed  at  the  poor,  but  it 
was  exclusively  upon  the  laborers  that  their  application  fell. 
Falling  in  debt  because  of  misfortune,  or  because  of  the  ex- 
tortions of  landlord  and  tradesman,51  the  worker  was  sum- 
marily despatched  to  jail,  and  remained  there  under  rigorous 
and  wretched  circumstances,  unless  he  chose  to  avail  himself 
of  the  alternative  the  law  presented.  'This  alternative  was 
that  the  imprisoned  worker  could  make  satisfaction  for  his 
debts  by  pledging  himself  in  servitude  to  his  creditors. 

49  "  Rhode  Island  Colonial  Records,  1636-1663,"  Vol.  1 :  174. 

50  Carey  and  Bioren's  "  Pa.  Laws,  1700-1770,"  Vol.  1 :  143. 

51  As  has  been  noted,  the  tenants  of  the  manorial  lords  and  masters 
were  covenanted  to  trade  and  buy  exclusively  at  his  stores.     The  owner 
was  able  to  exact  such  prices  as  he  pleased,  with  the  result  that  tenants 
invariably  were  in  debt.    When  it  suited  the  particular  interest  or  other 
motive  of  the  owner  to  put  the  tenant  in  jail,  he  did  so.     See  also 
Chapter   III   of   this  work   showing  the   enormous   prices   exacted   by 
merchants. 


THE   LABORING,    SERVANT   AND    SLAVE    CLASSES  65 

That  those  having  property  not  only  escaped  the  enforce- 
ment of  these  laws,  but  tried  to  pervert  them  fraudulently  to 
their  own  purposes  is  clearly  shown,  for  example,  in  a  Penn- 
sylvania act,  passed  in  the  year  1730.  Reciting  that  the  prior 
law  contained  no  provision  compelling  the  debtor  to  render 
any  account  of  his  or  her  estate,  the  act  went  on  to  say  that 
"  great  abuses  had  been  committed  by  persons  claiming  the 
benefit  of  the  law,  in  concealing  their  estates  and  making 
them  over  in  trust "  52 —  thus  revealing  that  Quaker  profes- 
sions of  "  brotherly  love  "  went  sadly  astray  when  in  conflict 
with  economic  interest.  This  act  declared  that  debtors  should 
render  accounts;  and,  among  other  provisions,  it  gave  land- 
lords the  right  to  recover  up  to  one  year's  rent,  by  seizure  of 
imprisoned  debtors'  goods  and  chattels.  The  jailor,  also,  was 
to  rank  as  a  creditor  for  his  fees,  but  jailors,  bailiffs  and 
others  guilty  of  extortion  were  to  be  punished.53 

But  the  abuses  heaped  upon  the  workers  continued,  as  is 
evident  from  the  preamble  of  a  Pennsylvania  act  adopted  in 
the  year  1745.  This  act,  "  for  the  easy  and  speedy  recovery 
of  small  debts  "  began  by  saying  that  "  it  is  found  by  expe- 
rience that  a  great  number  of  the  lawsuits  which  are  com- 
menced in  this  province,  are  brought  against  the  poorer  sort 
of  people  for  small  sums  of  money,  who  are  unable  to  bear 
the  expenses  arising  by  the  common  method  of  prosecution." 
Although  reducing  the  costs  of  actions  two-thirds,  this  law 
really  made  it  easier  for  landlords  and  traders  to  collect  from 
small  debtors;  if  the  debts  were  not  paid,  the  law  decreed 
imprisonment.54 

The  Existing  Contrasts. 

In  all  the  colonies,  but  more  markedly  so  in  the  South,  there 
were  thus,  broadly  speaking,  two  classes,  each  the  extreme  and 
the  antithesis  of  the  other. 

C2  Ibid.,  232-247.  "  /bid.  54  /bid.,  278. 


66  HISTORY   OF   THE    SUPREME    COURT 

The  various  strata  of  the  workers,  as  defined  by  law  and 
usage,  comprised  one  class.  Hemmed  in  by  harsh  statutes, 
and  oppressed  by  the  power  of  a  class  invested  with  the  full 
force  of  law  and  wealth,  and  construing  those  laws  to  their 
uttermost  limits,  the  workers  found  themselves  in  a  situation 
from  which  it  seemed  impossible  to  extricate  themselves.  In 
dress  and  living,  as  in  other  ways,  the  most  obviously  striking 
distinction  was  compelled  between  worker  and  master. 

Attired  in  clothes  of  the  coarsest  materials,  betokening 
plainly  his  occupation,  lowliness  and  menial  condition,  the 
worker  moved  about  in  an  environment  surcharged  with  the 
suspicion  and  undisguised  scorn  of  those  who  owned  his 
labor,  and  often  his  life.  Such  little  consideration  as  was 
afforded  by  law  to  prevent  too  brutal  treatment  of  him  was 
not  because  he  was  esteemed  human.  It  arose,  not  always, 
but  on  the  whole,  from  the  aim  of  the  more  far-seeing  of  the 
master  class  to  preserve  his  efficiency  at  the  highest  level  pos- 
sible. 

Resplendent  in  gold  and  silver  lace  and  buttons,  delicate 
laces  and  fine  apparel,  his  sword  pendant  on  his  embroidered 
belt  always  conspicuous,  the  master  was  a  very  different  ap- 
pearing person  from  the  bent,  clodded  worker  whom  he  looked 
down  upon  and  treated  with  a  haughty  distrust  and  arro- 
gance that  awoke  the  bitterest  but  inarticulate  resentment. 
The  rude  little  tenant  cottages  or  huts  in  which  the  slave, 
servant  or  laborer  existed,  grouped,  as  those  mean  habitations 
often  were,  about  the  manorial  or  plantation  mansion,  formed 
the  sharpest  contrast  with  the  elegant  style  in  which  the  mas- 
ter luxuriated.  This  environment  in  Virginia  is  described  by 
Jefferson  in  his  "  Memoirs  " : 

"At  the  time  of  the  first  settlement  of  the  English  in  Vir- 
ginia, when  land  was  had  for  little  or  nothing,  some  provi- 
dent persons  having  obtained  large  grants  of  it,  and  being  de- 
sirous of  maintaining  the  splendor  of  their  families,  entailed 
their  property  upon  their  descendants.  The  transmission  of 


THE   LABORING,    SERVANT   AND   SLAVE   CLASSES  67 

these  estates  from  generation  to  generation,  to  men  who  bore 
the  same  name,  had  the  effect  of  raising  up  a  distinct  class 
of  families,  who,  possessing  by  law  the  privilege  of  perpetu- 
ating their  wealth,  formed  by  these  means  a  sort  of  patrician 
order,  distinguished  by  the  grandeur  and  luxury  of  their  es- 
tablishments. From  this  order  it  was  that  the  king  usually 
chose  his  counsellor  of  state." 

It  was  then,  much  more  than  now,  the  fashionable  mark 
of  a  gentleman  not  to  "  degrade  "  himself  by  labor  of  any 
kind ;  and  the  leisure  of  his  rank  in  the  South  was  considered 
to  be  well  and  truly  signified  by  spending  his  time  in  hunting, 
athletic  sports,  carousing,  dissipating,  gambling,55  and  in  social 
festivities  —  or,  in  the  case  of  many  of  the  "  gentlemen  "  past 
youth  by  making  a  foible  of  reading,  music  and  study  and  a 
science  of  debauchery.  Some  few  there  were  who  applied 
themselves  seriously  to  such  mental  development  as  their  en- 
vironment and  interests  allowed;  and  these  became  the  most 
astute  representatives  of  their  class. 

In  New  England,  it  was  the  fashionable  part  of  a  gentle- 
man to  affect  church  patronization,  which  religious  ardor, 
however,  did  not  prevent  his  gratifying  his  appetite  for  some 
very  unorthodox  practices.  The  barriers  separating  classes 
and  grades  of  classes  in  New  York  and  New  England  almost 
approached  the  rigid  precision  in  the  South.  At  the  base 
were  the  slaves,  during  the  period  in  which  Indian  or  negro 
slavery  was  in  existence  there.  Then  came  the  indentured 
servants ;  then  the  free  laborers ;  after  them  the  mechanics ; 
then  the  yeomen  or  small  farmers,  above  whom  were  the 
small  merchants  or  traders.  The  next  stratum  was  the  pro- 
fessional class.  Above  these  towered  the  gentlemen  mer- 

55  A  gentleman  in  the  South  lost  caste  if  he  did  not  gamble  profusely 
and  for  high  stakes.  In  Virginia  and  Maryland  the  stakes  were  usually 
tobacco.  Thus,  for  example,  one  Beverly,  during  minorship,  lost  25,000 
pounds  of  tobacco  to  one  Smith,  and  Smith  sued  to  recover.  See  case 
on  appeal  of  Buckner  and  other  trustees  of  Beverly  vs.  Smith  et  al. 
Washington's  Virginia  Reports,  Vol.  1 :  296. 


68  HISTORY   OF   THE    SUPREME    COURT 

chants  or  shippers,  comprising  those  of  wealth  and  large 
commercial  operations.  At  the  apex  stood  the  lords  of  great 
estates,  or  royal  officials,  both  often  in  one  category. 

Between  these  classes  —  or  "  orders  "  as  they  were  termed 
—  sharp  lines  of  recognized  caste  were  drawn.  Whether  at 
pious  ceremonies  in  church  or  at  public  meetings,  people  were 
ranged  in  order  of  precedence  according  to  their  station.  Up 
to  the  time  of  the  Revolution  students  in  Harvard  College, 
according  to  Thwaites,  were  catalogued  arid  regarded  purely 
in  the  order  of  their  social  rank;  and  even  after  the  actual 
custom  was  dropped  the  spirit  long  persisted.  Each  "  or- 
der "  was  expected  to  look  up  to  that  above  it,  and  all  of  the 
"  lower  orders  "  were  called  upon  to  yield  the  most  reveren- 
tial respect  and  obedience  to  the  upper  class. 

The  fashions,  views  and  prejudices  of  the  master  class  were 
absorbed,  and  in  application  even  exceeded,  by  the  profes- 
sional men  of  whom  the  rich  were  clients.  Some  of  the  law- 
yers themselves  sprang  from  the  ruling  class.  With  but  the 
fewest  and  most  creditable  exceptions,  all  others  of  that  pro- 
fession sought  to  ingratiate  themselves  into  the  favor  of  the 
rich  by  flattering,  pleasing  and  serving  them  with  an  excess 
of  zeal  in  stamping  down  the  worker  still  further  by  statutes 
ingeniously  borrowed  from  mediaeval  law,  or  by  harrowing 
the  worker  in  the  courts  with  lawsuits  in  which  these  attor- 
neys by  every  subtle  argument  appealed  to  the  prejudices  of 
the  judge,  already  antagonistic  to  the  worker  and  prejudiced 
against  him.  Even  if  the  judge,  perchance,  were  impartially 
and  leniently  disposed,  the  laws,  as  they  were,  left  him  no 
choice.  Reading  the  suits  and  speeches  of  the  times,  one  sees 
clearly  that  the  lawyers  of  the  masters  outdid  even  their  cli- 
ents in  asserting  the  masters'  lordly,  paramount  rights  and 
powers,  and  in  denying  that  any  rights  attached  to  the  under 
class.  This  lickspittle  subservience  to  their  clients  was  sub- 
sequently, as  we  shall  have  abundant  occasion  to  observe, 


THE   LABORING,    SERVANT   AND   SLAVE   CLASSES  69 

transferred  to  the  bench  of  the  Supreme  Court  of  the  United 
States  with  the  most  far-reaching  results. 

Development  of  Native  Manufacturing. 

While  the  landlords  and  traders  were  thus  enacting  law 
after  law  causing  or  affirming  the  servitude  and  practical  vil- 
lenage  of  the  working  people  of  every  kind,  they  were  them- 
selves making  profits  in  the  exercise  of  the  most  fraudulent 
operations  in  trade.  The  very  debts  for  which  the  worker 
was  imprisoned  were  often  claimed  for  bills  for  adulterated 
or  otherwise  spurious  merchandise. 

Landlord  and  trader  were  often  the  one  and  the  same  per- 
son;  not  so  much  the  petty  landlord,  who  owned  a  lot  or  two. 
in  the  cities,  but  the  lords  of  the  great  plantations  and  mano- 
rial estates.50  They,  or  their  agents,  traded  with  the  Indians 
for  furs,  which  were  exported  to  Europe ;  they  sold  and  ex- 
ported the  timber  and  lumber  from  their  domains ;  from  the 
estates  along  the  seashore  and  rivers  were  exported  great 
quantities  of  fish,  especially  to  Roman  Catholic  countries ; 
they  had  their  grist  mills,  breweries  and  other  industries. 
And  out  of  the  planter  class  developed  a  manufacturing  class  — 
not  manufacturing  in  the  modern  factory  sense,  but  an  industry 
in  which  commodities  were  made  by  hand  by  bonded  serv- 
ants, slaves  and  wage  workers.  A  broadside  published  at  the 
time 5T  said  that  the  wars  in  Europe  had  hurt  the  tobacco 
trade  so  much  and  had  so  reduced  the  planters  "  that  for  several 
years  past  the  whole  product  of  their  tobacco  would  hardly 
clothe  the  servants  that  made  it.  Some  of  the  Planters,"  the 
broadside  went  on,  "  in  hopes  of  better  Success,  have  con- 
tinued planting,  till  they  have  run  themselves  so  far  in  debt, 

•r>G  They  were  then  called  plantations  in  New  England,  as  well  as  in 
the  South. 

57  «  The  Present  State  of  the  Tobacco  Plantations  In  America."  The 
exact  date  of  this  broadside  is  uncertain. 


7<D  HISTORY   OF    THE    SUPREME    COURT 

that  they  have  been  forced  to  sell  part  of  their  Land  and 
Servants,  to  secure  the  rest.  Others,  out  of  meer  Necessity, 
have  fallen  into  the  manufacturing  of  Woolen,  Cotton,  Flax, 
Leather,"  and  various  other  enumerated  classes  of  goods, 
which,  said  the  broadside,  they  had  brought  to  great  perfec- 
tion. Here  we  see  the  beginning  of  that  manufacturing  which 
later  was  to  be  so  important  a  factor. 

Debauching  of  Indians  and  Other  Traders'  Frauds. 

So  firmly  established  and  so  widespread  early  in  the  seven- 
teenth century  was  the  practice  on  the  part  of  white  traders 
of  debauching  and  cheating  the  Indians,  that  in  the  "  Certain 
Conditions  or  Concessions,"  agreed  upon  by  William  Penn  in 
connection  with  his  charter,  in  July,  1681,  before  he  left  Eng- 
land, this  provision  was  inserted: 

"  Twelfthly.  And  forasmuch  as  it  is  usual  with  the  plant- 
ers to  over-reach  the  poor  natives  of  the  country  in  trade,  by 
goods  not  being  good  of  the  kind,  or  debased  with  mixtures, 
upon  which  they  are  sensibly  aggrieved,  it  is  agreed,  whatever 
is  sold  to  the  Indians,  in  consideration  of  their  furs,  shall  be 
sold  in  the  market  place,  and  there  suffer  the  test,  whether 
good  or  bad ;  if  good,  to  pass ;  if  not  good,  not  to  be  sold  for 
good,  that  the  natives  may  not  be  abused  nor  provoked."  58 

However  sincere  Penn  may  have  been  in  seeking  to  prevent 
in  Pennsylvania  trie  debauching  and  swindling  of  Indians  go- 
ing on  shamelessly  in  other  colonies,  the  agreement  was  of 
absolutely  no  effect.  Quaker  traders,  not  less  than  Puritan 
and  Southern  traders  elsewhere,  profited  from  the  practice, 
and  pushed  it  to  such  an  extent  that  on  May  22,  1722,  a  law 
was  enacted  in  Pennsylvania  prohibiting  the  selling  of  rum 
and  other  strong  liquors  to  the  Indians  and  "  to  prevent 
abuses  that  may  happen  thereby."  50  Later  acts  for  the  pre- 

68  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  VI,  Appendix,  p.  10. 
s»  Ibid.,  Vol.  1 :  87. 


THE   LABORING,    SERVANT   AND   SLAVE   CLASSES  Jl 

vention  of  these  widespread  abuses  were  passed  on  April  8, 
1758,  April  17,  1759,  and  April  2,  1763.™ 

The  very  liquor  sold  to  the  Indians  and  whites  was  adulter- 
ated. To  prevent  "  fraud  in  mixing  and  adulterating  rum, 
brandy,  or  such  like  spirits,"  a  law  was  enacted  in  Pennsyl- 
vania in  the  year  I7O5.61  An  act  passed  in  1722  prohibited 
the  use  of  unwholesome  materials  in  making  beer ; 62  and  these 
acts  were  reenforced  by  another  act  passed  in  1723.  Such 
fraudulent  practices  extended  to  other  lines  of  trade  in  Penn- 
sylvania; a  fact  that  is  of  no  little  significance,  seeing  that 
that  colony, —  later  State  —  became  one  of  the  foremost  in 
manufacturing  in  the  United  States. 

An  act,  passed  in  1759,  was  designed  "  to  prevent  the  ex- 
portation of  bad  or  unmerchantable  staves,  beading  boards 
and  timber  " ;  many  abuses  and  frauds,  the  act  said,  went  on 
in  the  exportation  of  stuffs  to  the  foreign  markets.63  The 
decline  in  the  export  trade  of  shad  and  herring  led  to  the 
passage  of  an  act,  in  1774,  to  prevent  frauds  in  the  packing 
and  preserving  of  those  goods  for  exportation.64  The  export 
of  fish  from  the  New  England  fisheries  —  comparatively  large 
at  the  time,  gradually  fell  off  for  the  same  reason,  as  official 
reports  later  showed. 

Large  fortunes  were  accumulated  by  ship  owners  from  the 
export  of  fish,  timber,  tobacco,  furs,  corn,  rice,  manufactured 
products  and  other  commodities  and  in  the  return  importation 
of  negro  slaves  and  merchandise.  These  fortunes,  and  the  men 
who  acquired  or  inherited  them,  had  the  greatest  influence  in 
determining  both  the  declaration  and  the  course  of  the  Revolu- 
tion, the  fashioning  of  the  Constitution  of  the  United  States, 
the  drafting  of  the  State  Constitutions,  and  the  laws  of 

00  Ibid.,  p.  343,  etc. 

01  Ibid.,  60.     Evidently  the  Quaker  lawmakers  were  much  concerned 
for  themselves  in  demanding  strong  drink;  there  was  much  mixing  of 
water  with  rum,  brandy,  etc.,  the  act  complained. 

«2/&uf.,  166. 

03  Ibid.,  347-352. 

o*  Ibid.,  Vol.  II :  122. 


72  HISTORY   OF   THE   SUPREME    COURT 

Congress;  and  some  of  them,  as  we  shall  see  later,  had  their 
direct  influence  and  their  representatives  upon  the  bench  of 
the  Supreme  Court  of  the  United  States.  These  wealthy 
shippers  had  a  positive  and  keen  personal  interest  in  seeking 
to  continue  the  actual  substance  —  even  if  the  form  of  gov- 
ernment were  changed  —  of  the  conditions  from  which  they 
profited.  But  it  was  the  conditions  as  a  whole  so  conducive 
to  the  benefit  of  the  predominating  landed  interests,  with  the 
allied  but  subordinate  trading  class,  that  prepared  the  way 
for  later  events  to  be  now  described. 


CHAPTER  III 

THE  REAL  FORCES  OF  THE  REVOLUTION  AND  THE 
DRAFTERS  OF  THE  CONSTITUTION 

The  American  Revolution  of  1776  did  not  proceed  from 
any  intrinsic  popular  impetus  for  national  independence.  On 
the  part  of  the  intelligent  elements  of  the  working  class,  con- 
scious of  the  oppression  to  which  they  were  subjected,  there 
had  long  been  a  smoldering  sense  of  revolt ;  but  it  was  a  revolt 
against  the  tyranny  of  the  manorial  lords  and  other  masters. 
At  times  it  had  broken  out  into  spasmodic  and  abortive  up- 
risings, which,  necessarily  local  in  their  scope,  had  been 
speedily  put  down,  and  the  leaders  imprisoned  or  executed. 

These  outbreaks  were  not  against  British  laws  and  ex- 
actions; they  arose  from  conditions  in  Dutch,  as  well  as  in 
British,  colonies.  The  laws  weighing  so  intensely  upon  the 
various  grades  of  the  working  population  were,  in  general 
principle,  imitated  from  the  European  codes,  chiefly  the  Brit- 
ish. In  special  character  and  adaptation,  however,  they  were 
of  native  make.  They  were  demanded,  drafted  and  enlarged 
by  the  manorial  lords  and  merchants  in  the  colonial  councils 
and  legislatures,  and  enforced  by  officials  of  the  same  class. 
The  remonstrances  of  the  settlers  to  Lord  Bellomont  and  Gov- 
ernor Wright  revealed  how,  when  a  favorable  occasion  came, 
appeals  for  relief  were  made  over  the  heads  of  the  legislatures 
direct  to  the  British  Government. 

The  Revolution  was  declared  by  a  combination  of  powerful 
men  of  the  day  —  even  then  styled  in  official  proclamations  as 
capitalists  —  controlling  much  of  the  valuable  natural  re- 
sources and  their  products.  Some  of  these  dissatisfied  mili- 

73 


74  HISTORY   OF   THE   SUPREME    COURT 

tant  personages  were  owners  of  vast  estates ;  others  were  dis- 
gruntled shippers  or  merchants  united,  and  with  very  good 
reason,  by  a  common  economic  interest  in  seeking  to  secure 
control  of  a  political  state  by  means  of  which  they  could  assist 
the  development  of  trade  and  manufacture  unshackled  by  the 
paralyzing  laws  ordained  by  the  British  trading  class.  These 
various  groups  were  more  or  less  interrelated  by  property  in- 
terest and  often  by  marriage ;  and  all  were  agreed  upon  the 
distinct  aim  of  vesting  in  themselves  the  power  to  acquire 
unlimited  areas  of  the  public  domain  unhampered  by  restric- 
tive British  laws  and  regulations. 

Attached  to  the  Revolutionary  movement  because  of  its 
supposed  potentialities  for  bringing  about  an  alteration  of 
laws  promising  political  freedom  and  social  equality,  were 
sincere,  pecuniarily  disinterested  radicals.  Making  allowance 
for  what  proved  to  be  alluring  and  empty  phrases  conceded 
by  the  men  of  large  property  to  appease  and  move  the  multi- 
tude, the  purposes  of  these  radicals  were  entirely  subverted, 
and  their  plans  circumvented. 

It  is  not  the  intention  here  to  enter  into  a  detailed  narra- 
tive of  the  Revolution,  nor  to  present  any  other  facts  than 
those  strictly  necessary  to  elucidating  the  subject  of  this 
work.  To  get  a  right  understanding  of  subsequent  events,  a 
clear,  logical  summary  of  the  genuine  acts  of  the  Revolution 
and  of  its  sponsors  and  directors,  is  a  necessary  prelude.  A 
chain  of  hitherto  unpublished  and  illuminating  facts  herein 
set  forth  —  facts  significantly  omitted  from  approved  conven- 
tional histories  —  will  serve  to  explain  the  real  outcome  of 
the  Revolution  and  will  show  which  class  it  was  intended  ex- 
clusively to  benefit.  These  facts  will  also  reveal  the  actual 
nature  of  the  forces  drafting  the  Constitution  of  the  United 
States,  and  so  vigorously  pushing  its  adoption.  Furthermore 
—  what,  at  present,  is  more  important  —  the  facts  in  ques- 
tion will  open  a  hitherto  unsuspected  vista  through  which  may 
be  seen  in  all  their  significance  some  of  the  real  motives  and 


THE   REAL    FORCES   OF   THE   REVOLUTION  75 

interests  underlying  and  actuating  the  Supreme  Court  of  the 
United  States  from  its  very  foundation. 

Unlimited  Areas  of  Land  Sought. 

American  land  proprietors,  and  adventurers  seeking  large 
grants,  had  long  been  impatient  with  acts  of  king  or  Par- 
liament placing  limitations  upon  the  area  of  land  to  be  granted. 

The  bitter  conflict  that  Lord  Bellomont  had  with  some  of 
them,  his  relentless  exposure  of  their  briberies,  and  the  al- 
tered laws  resulting,  left  lasting  memories  of  resentment. 
Most  of  the  royal  viceregents  could  be  reached  by  bribery  or 
other  insidious  influences,  but  there  was  always  imminent  dan- 
ger of  the  advent  of  an  honest  official  like  Bellomont.  The 
successive  kings  and  queens  found  the  granting  of  immense 
estates  in  America  an  inexpensive  method  of  rewarding  fav- 
orites. 

Parliament  and  the  Boards  of  Trade  and  of  Plantations, 
however,  were  more  concerned  with  the  general  broad  prin- 
ciple of  colonization,  and  with  developing  a  trade  calculated 
to  increase  the  wealth  of  the  aristocracy  and  traders  of  Eng- 
land, and  with  conserving  the  interests  of  both  classes,  who 
regarded  America  as  a  prime  field  for  exploitation.  The  in- 
terests of  the  American  landowners  and  shippers  profited  by 
the  shipping  of  supplies  of  timber,  fish,  tobacco  and  other 
commodities,  often  fraudulent  in  some  respect  or  other.  The 
British  traders  complained  of  this  widespread  fraud ;  and  thus 
it  is  we  find  the  records  of  Parliament  in  the  seventeenth  cen- 
tury numerously  sprinkled  with  acts  prohibiting  fraud  in  the 
exportation  from  America  of  this  or  that  merchandise. 

Pursuing  their  projects  for  wealth  three  thousand  miles 
across  the  Atlantic,  at  a  time  when  news  from  Britain  three 
months  old  was  fresh  news,  in  a  country  being  newly  opened, 
the  land  proprietors,  for  the  most  part,  did  not  see  why  they 
should  respect  this  interference.  Between  them  and  the  trad- 


76  HISTORY   OF   THE   SUPREME   COURT 

ers  of  England  the  seeds  of  an  economic  conflict  early  de- 
veloped. This  conflict  gathered  new  and  important  auxiliaries 
in  the  shippers  and  manufacturers.  Timber  was  abundant  in 
America,  and  with  bonded  labor,  slaves  and  low-paid  me- 
chanics, ships  could  be  built  cheaply  and  rapidly.  A  great 
number  of  ships  were  constructed,  and  profitable  cargoes  were 
at  hand.  Hard  by  the  iron  deposits  that  were  discovered, 
furnaces  and  foundries  were  erected;  part  of  the  abundance 
of  furs  was  used  for  the  manufacture  of  hats,  and  another 
part  exported  in  the  -raw  state.  Planters,  as  we  have  seen, 
began  to  utilize  their  bonded  and  slave  labor  in  the  manufac- 
ture of  linen  and  cotton  cloth  from  the  cotton  and  flax 
cheaply  raised  on  new  and  fertile  soil  by  the  same  labor.  The 
wool  of  the  flocks  of  sheep  was  turned  into  woolen  cloth, 
and  the  hides  of  the  cattle  into  leather  goods.  The  trade  of 
the  colonies  became  world-wide. 

These  products  made  lucrative  cargoes  for  the  shippers, 
and  supplied  an  expanding  market  for  the  manufacturing 
planters.  But  so  fast  were  ships  built,  that  the  need  for 
ever-increasing  cargoes  arose.  The  American  shippers  more 
and  more  resented  the  monopoly  of  the  importation  of  tea 
granted  by  the  British  Government  to  the  East  India  Com- 
pany—  tea  then  being  in  wide  use.  Conveying  their  cargoes 
to  Europe,  the  American  ships  brought  back  cargoes  of  negro 
slaves  from  Africa,  but  the  owners  also  wanted  a  share  in  the 
return  transportation  of  tea  and  other  commodities. 

British  Traders   Strike   at  American. 

During  the  same  period  England  was  becoming  a  more  ex- 
tensive manufacturing  country ;  in  its  insular  situation,  with 
a  fairly  dense  population  dependent  upon  its  industries  and 
foreign  trade,  its  trading  class  was  compelled  to  bend  every 
effort  toward  suppressing  the  threatening  American  competi- 
tion. Consequently,  Parliament,  representing  those  interests, 


THE   REAL  FORCES   OF  THE   REVOLUTION  77 

passed  act  after  act  designed  to  crush  the  American  manufac- 
turer, and  cripple  the  American  shipping  trade. 

Various  laws  prohibited  the  exportation  of  hats,  and  the 
sale  in  one  colony  of  hats  made  in  another;  iron  mills  were 
forbidden ;  in  fact  everything  that  could  be  made  from  natural 
resources  was  legislated  against.  A  heavy  duty  was  put  upon 
the  importation  of  molasses,  then  extensively  employed  in 
making  rum,  and  also  used  by  fishermen ;  onerous  duties  were 
also  put  upon  tea,  nails,  glass  and  paints.  The  shippers,  some 
of  whom  individually  owned  three  score  ships,  attempted  to 
evade  these  regulations  by  smuggling,  but  they  were  con- 
fronted by  another  set  of  British  laws,  enforced  by  vigilant 
British  officials. 

From  this  conflict  Qfjrading  inte^est^betwegn  the  trading 
class  of  Great  Britain,  and  that  of  the  American  colonies^_the_ 
America.!^  Revolution^  was  "born.  IFwas  estimated  that  proba- 
bly nine-tenths  of  all  the  tea,  wine,  fruit,  sugar  and  molasses 
consumed  in  the  colonies  were  smuggled.  The  tea  used  in  the 
colonies  reached  alone  an  item  of  $2,500,000  annually. 
Thomas  Hancock,  the  greater  part  of  whose  fortune  of  £70,- 
ooo  John  Hancock  inherited,  gathered  the  larger  part  of  it 
illicitly  in  the  Dutch  tea  trade;  and  in  the  "  Historical  Essay," 
prefaced  to  his  voluminous  mass  of  biographical  details  in  his 
"  Loyalists  of  the  American  Revolution,"  Sabine  says  that 
immediately  before  the  Revolution  was  declared,  John.  Han- 
cock was  respondent  in  the  Admiralty  Court,  in  suits  of  the 
crown,  to  recover  nearly  half  a  million  dollars  as  penalties 
for  smuggling. 

The  greatest  offending  port  in  the  practice  of  smuggling 
was  Boston ;  there  the  British  Government  stationed  twelve 
warships.  At  least  a  fourth  of  the  signers  of  the  Declara- 
tion of  Independence  were  traders,  or  both  shippers  and  land- 
holders;  more  than  one  of  them,  Sabine  says,  was  branded 
with  the  epithet  of  smuggler. .  Among  the^  signers  of  the  Dec- 
laration of  Independence  these  were  some  of  those  having 


78  HISTORY   OF    THE    SUPREME    COURT 

large  shipping  interests:  John  Hancock,  John  Langdon, 
Samuel  Adams,  William  Whipple,  George  Clymer,  Stephen 
Hopkins,  Francis  Lewis,  Philip  Livingston,  Elbridge  Gerry, 
Joseph  Hewes,  George  Taylor,  Roger  Sherman,  Henry  Laur- 
ens  and  Robert  Morris. 


Americans  Agitate  for  Native  Factories. 

In  1774,  many  of  the  conventions  of  deputies  of  the  various 
colonies^  composed,  as  those  assemblies  were,  of  landowners, 
merchants  and  lawyers,  passed  resolutions  denouncing  the 
monopoly  of  tea  granted  to,  and  exercised  by,  the  East  India 
Company,  and  demanding  the  establishment  of  native  manu- 
factories. 

The  Maryland  convention  of  deputies,  meeting  at  Annapolis, 
December  8  to  12,  1774,  adopted  a  series  of  resolutions.  To 
increase  flocks  of  sheep  and  to  promote  the  manufacture  of 
wool  in  Maryland,  the  killing  of  lambs  ought  to  be  restricted. 
For  the  increasing  of  the  manufacture  of  linen  and  cotton, 
every  planter  was  advised  to  raise  as  much  flax,  hemp  and 
cotton  as  he  conveniently  could.  Then,  referring  to  the  gen- 
eral boycott  placed  on  certain  British  goods,  followed  this 
illuminating  resolution,  which  in  itself  supplies  the  clearest 
index  as  to  why  it  was  so  great  a  number  of  workers  were 
constantly  being  imprisoned  for  debt : 

"  One  general  rule,  allowing  a  reasonable  profit  to  the 
trader  and  preventing  him  from  taking  advantage  of  the  scar- 
city of  goods  which  may  be  occasioned  by  the  non-importation 
would  give  great  satisfaction  to  the  merchants  and  people  of 
this  province,  Resolved  unanimously: 

"  That  no  merchant  ought  to  sell  his  goods  at  wholesale 
for  more  than  one  hundred  and  twelve  and  a  half  per  cent. ; 
—  at  retail,  for  cash,  for  more  than  thirteen  per  cent. ;  —  on 
credit,  for  more  than  one  hundred  and  fifty  per  cent,  on  the 
prime  cost ;  and  that  no  merchant,  or  other  person,  ought  to 


THE   REAL   FORCES   OF   THE    REVOLUTION  79 

engross  [monopolize]  any  goods,  wares,  or  merchandise  what- 
soever. .  .  ."  * 

If  these  rates  of  profit  were  considered  "  reasonable,"  what 
was  to  be  said  of  the  previous  prices  exacted  from  the  work- 
ers, the  condition  of  most  of  whom  forced  them  to  buy  on 
credit  ? 

In  providing  for  military  companies  with  the  not  far-dis- 
tant plan  of  resisting  England,  this  convention,  as  was  to  be 
expected,  ignored  the  common  man  because  it  feared  him 
under  arms,  and  declared : 

"  Resolved,  unanimously,  That  a  well  regulated  militia,  com- 
posed of  the  gentlemen,  freeholders  and  other  freemen  is  the 
natural  strength  and  only  stable  security  of  a  free  govern- 
ment,"—  therefore,  it  was  recommended  to  that  class  of  in- 
habitants, between  the  ages  of  sixteen  and  fifty,  that  they 
should  form  themselves  into  military  companies.2 

At  the  same  time  the  other  colonies  were  passing  similar 
resolutions.  Those  adopted  by  the  Massachusetts  Convention 
of  Deputies  at  Boston,  on  December  8,  1774,  were  the  most 
extensive  and  ambitious.  In  addition  to  calling  for  the  es- 
tablishment of  woolen  and  cotton  mills,  it  also  recommended 
measures  for  the  creation  of  manufactories  for  making  steel, 
tinplates,  fire-arms,  saltpeter,  paper,  buttons,  stockings  and 
other  enumerated  commodities.3 

Run  the  Factories  with  Woman  and  Child  Labor. 
The  purpose  of  these  nascent  capitalists  *  are  to  be  seen 

1  Niles'  "  Principles  and  Acts  of  the  Revolution  in  America ;  A 
Collection  of  Speeches,  Orations  and  Proceedings.  .  .  .  And  Other 
Fugitive  or  Neglected  Pieces"  (Edition  of  1822),  p.  131.  It  is  a  ques- 
tion whether  the  "  thirteen  per  cent."  quoted  above  is  correctly  given  by 
Niles. 

-Ibid.,  182.  A  freeholder  was  one  who  owned  a  prescribed  amount 
of  property. 

-Ibid. 

*  Those  who  may  think  that  the  word  capitalist  is  a  fairly  modern 
coined  word,  are  advised  to  consult  the  old  British  and  Spanish  royal 
colonial  proclamations,  in  which  the  word  was  frequently  used. 


80  HISTORY   OF   THE   SUPREME   COURT 

clearly  in  the  report  of  the  proceedings  of  a  company  formed 
in  Philadelphia  for  the  establishment  of  woolen,  cotton  and 
linen  manufactories.  An  elaborate  account  of  a  speech  de- 
livered at  a  meeting  of  this  company  at  Carpenters'  Hall, 
Philadelphia,  on  March  16,  1775,  is  to  be  found  in  Niles' 
"  Principles  and  Acts  of  the  Revolution  in  America."  It  does 
not  specify  the  name  of  the  company,  nor  does  it  give  the 
name  of  the  promoter  who  made  the  long  speech,  but  it  says 
that  the  account  given  was  published  at  the  time  by  request 
of  the  company. 

Obscurely  published,  that  speech  is  invested  to-day  with  an 
historic  importance  because  of  the  conditions  it  foretold. 

The  speaker  dwelt  at  considerable  length  upon  the  great 
riches  to  be  derived  from  the  establishment  of  manufactories, 
and  he  described  the  factories  of  Great  Britain  as  "  the  founda- 
tion of  her  riches  and  power.  They  have  made  her  mer- 
chants nobles,  and  her  nobles  princes."  He  then  proceeded  to 
consider  in  turn  each  of  the  objections  advanced  against  the 
foundation  of  factories. 

The  plan  of  the  company,  he  said,  was  to  employ  the  poor, 
"  and  the  principal  part  of  the  business  was  to  be  carried  on 
in  their  houses."  Here,  evidently,  was  the  origin  of  the  sweat- 
shop system,  at  least  in  conjunction  with  the  factory  system. 
A  certain  portion  of  the  work  could  be  done  in  the  homes 
of  the  poor,  but  the  age  of  machinery  had  arrived,  and  fac- 
tory buildings  were  quite  necessary.  The  colonies  were  largely 
of  an  agricultural  character;  there  was  much  apprehension 
that  factories  would  absorb  men  who  were  wanted  as  tillers 
of  the  soil.  The  speaker  went  on  to  dissipate  these  fears  of 
the  large  landholders.  As  to  where  the  labor  was  to  come 
from  he  said  that  in  England  the  greater  number  of  factory 
"  hands  "  had  been  taken  from  the  plow.  But  there  would 
be  little  nead  of  such  a  drain  in  America.*  "  Besides,"  he  went 
on,  "  if  these  manufactories  are  conducted  as  they  ought  to 
be,  two-thirds  of  the  labor  of  them  will  be  carried  on  by  those 


THE   REAL   FORCES   OF   THE    REVOLUTION  8l 

members  of  society  zvho  cannot  be  employed  in  agriculture, 
namely,  by  women  and  children."  5 

Continuing,  the  speaker  considered  other  objections.  "  A 
second  objection,"  he  said,  "  is,  that  we  cannot  manufacture 
cloths  so  cheap  here,  as  they  can  be  imported  from  Britain. 
It  has  been  the  misfortune  of  most  of  the  manufactories  which 
have  been  set  up  in  this  country,  to  afford  labor  to  journey- 
men, only  for  six  or  nine  months  in  the  year,  by  which  means 
their  wages  have  necessarily  been  so  high  as  to  support  them 
in  the  intervals  of  their  labor.  It  will  be  found,  upon  inquiry, 
that  those  manufactories  which  occupy  journeymen  the  whole 
year,  are  carried  on  at  as  cheap  a  rate  as  they  are  in  Britain. 
The  expense  of  manufacturing  cloth  will  be  lessened  from 
the  great  share  women  and  children  will  have  in  them;  and 
I  have  the  pleasure  of  informing  you  that  the  machine  lately 
brought  into  this  city  for  lessening  the  expense  of  time  and 
hands  in  spinning  is  likely  to  meet  with  encouragement  from 
the  Legislature  of  our  province.  In  a  word  the  experiments 
which  have  already  been  made  among  us  convince  us  that 
woolens  and  linens  of  all  kinds  may  be  made  and  bought  as 
cheap  as  those  imported  from  Britain,  and  I  believe  everyone 
who  has  tried  the  former  will  acknowledge  that  they  wear 
twice  as  well  as  the  latter. 

"  A  third  objection  to  manufactories  is  that  they  destroy 
health  and  are  hurtful  to  population.  The  same  may  be  said 
of  navigation,  and  many  other  arts  which  are  essential  to 
the  happiness  and  glory  of  a  State.  I  believe  that  many  of 
the  diseases  to  which  the  manufacturers  [factory  workers]  in 
Britain  are  subject,  are  brought  on,  not  so  much  by  the  nature 
of  their  employment,  but  by  their  unwholesome  diet,  damp 
houses  and  other  bad  accommodations,  each  of  which  may  be 
prevented  in  America."  ° 

B  Niks'  "  Principles  and  Acts  of  the  Revolution   In   America,"  etc., 
p.  205.     The  italics  are  mine. —  G.  M. 
«  Ibid. 


82  HISTORY    OF   THE    SUPREME    COURT 

This  meeting  was  held,  and  this  project  expounded,  more 
than  a  year  before  the  drafting  and  adoption  of  the  principles 
embodied  in  the  Declaration  of  Independence.  Here  we  per- 
ceive the  industrial  capitalist  class  at  work  at  its  very  birth 
calmly  setting  out  to  promote  its  wealth  and  power  on  the 
bodies  of  women  and  children.  We  see,  also,  that  the  plan 
was  no  vague,  dimly  defined  one,  but  an  alert,  already  ma- 
tured, determined  one  of  competing  with  England,  and  oper- 
ating the  machines,  with  the  very  cheapest  labor  obtainable  — 
that  of  women  and  children.  If  former  agricultural  laborers 
did  the  factory  work  cheap  in  England,  women  and  children 
would  do  it  cheaper  here,  thus  outdoing  the  capitalist  class 
of  England  in  cheapness  of  labor. 

This  was  the  plan  resolved  upon  before  the  overt  beginning 
of  the  Revolution,  which  pretended  to  act  upon  the  principle 
that  all  men  were  born  free  and  equal.  And  these  facts  must 
give  a  shock  even  to  radical  writers  who,  without  tracing  the 
origin  of  woman  and  child  labor  to  its  iniquitous  source,  have 
maintained  that  it  was  originally  somewhat  of  an  accidental 
development.  This  plan  decided  upon,  it  was  easy  to  con- 
script women  and  children  from  the  workhouses  and  houses 
of  correction  or  arrange  accommodations  with  the  overseers 
of  the  poor  into  whose  absolute  jurisdiction  the  poor  laws 
then  placed  the  children  of  the  poor. 

Masses  of  men,  having  no  interest  in  trade,  and,  in  fact, 
cherishing  well-founded  grievances  against  those  who  by  con- 
trolling the  courses  of  trade  control  the  destinies  of  men,  will 
not  fight  simply  to  extend  trade.  A  far  stronger  incentive 
than  sordid  gain  is  necessary  to  arouse  popular  imagination, 
daring  and  enthusiasm.  So  the  landed,  shipping  and  trading 
groups  soon  discovered.  The  more  perspicacious  of  them  saw 
that  to  stir  the  required  ardor  and  to  enroll  volunteers,  it  was 
essential  to  make  the  mass  believe  that  they  were  to  fight  for 
undying  progressive  principles  for  their  own  advancement  and 
welfare,  and  that  all  should  have  a  share  in  property.  The 


THE   REAL    FORCES   OF   THE    REVOLUTION  83 

associations,  called  patriotic  societies,  supplied  a  small  num- 
ber of  volunteers  of  their  own  rank,  but  composed  as  they 
were,  of  certain  landowners,  traders,  and  large  or  small  mer- 
chants, the  greater  part  of  their  members  remained  at  home 
to  put  through  great  land  acquisitions  under  cover  of  the 
Revolution,  or  to  profit  from  financial  or  trade  operations  at 
the  expense  and  sacrifice  of  the  Continental  army  and  of  the 
nation.  The  famous  "  Sons  of  Liberty  "  of  New  York  were 
composed  of  middle-class  merchants,  one  of  whom,  William 
Mooney,  later  founded  the  Society  of  "  St."  Tammany  —  the 
Tammany  Hall  of  the  future. 

Inspiring  Slogans  for  the  Mass. 

As  a  means  of  inciting  popular  temper  and  winning  faith, 
the  associated  governing  classes  now  professed  to  take  up 
some  of  the  very  doctrines  for  the  advocacy  of  which,  pre- 
viously, they  or  their  ancestors  had  punished  men  with  prison 
sentences  or  summary  execution. 

Clause  I  of  the  Bill  of  Rights  of  Pennsylvania  asserted : 
"  That  all  men  are  born  equally  free  and  independent,  and 
have  certain  natural,  inherent  and  inalienable  rights,  amongst 
which  are  the  enjoying  and  defending  life  and  liberty,  acquir- 
ing, possessing  and  protecting  property,  and  pursuing  and  ob- 
taining happiness  and  safety."  7  In  various  forms  other  colo- 
nies asserted  the  same. 

But  the  landowners,  shippers,  traders  and  lawyers,  com- 
posing the  majority  who  adopted  the  Declaration  of  Inde- 
pendence, apparently  decided  not  to  allow  so  momentous  a 
declaration  to  receive  the  stamp  of  their  authority.  Giving 
the  people  the  form,  and  smothering  the  substance,  they 
omitted  the  all-important  doctrine  that  every  man  was  entitled 
to  acquire  and  own  property,  and  they  left  in  the  Declara- 
tion, the  meaningless  phrase  that  every  man  was  entitled  to 

7  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  VI,  Appendix,  p.  30. 


84  HISTORY   OF   THE    SUPREME    COURT 

life,  liberty  and  the  pursuit  of  happiness.  They  were  not 
ignorant  of  the  fact  that  to  live  and  enjoy  life,  the  means  of 
subsistence  must  first  be  assured;  the  prospect,  however,  of 
a  surrender  of  their  own  caste,  powers  and  privileges,  a  cur- 
tailment of  the  projects  many  of  them  had  in  mind  and  soon 
carried  out,  and  the  entrance  of  democracy  into  the  affairs  of 
government,  affrighted  them. 

That  the  Revolution  was  essentially  and  definitely  a  traders' 
rebellion  for  liberty  of  trade  to  get  what  they  wanted,  make 
what  they  willed,  and  sell  where  they  could,  no  small  pro- 
portion of  the  workers  were  fully  sensible.  To  get  recruits, 
desperate  action  was  found  necessary.  At  the  instigation  of 
the  merchants,  small  guerrilla  mobs  were  repeatedly  organized 
to  terrorize  and  coerce  the  passive,  unwilling  or  antagonistic. 
Bounties,  then  considered  enormous,  were  held  out  as  in- 
ducements for  enlistment;  the  price  (in  paper)  for  a  single 
recruit  was,  according  to  Sabine,  as  high  sometimes  as  $750 
and  $1,000  on  enlistment  for  the  war,  and  the  donation,  in 
addition,  of  land  bounties  and  emoluments  by  Congress.  It 
was  these  inducements  that  brought  into  the  Revolutionary 
army  so  large  a  number  of  foreigners. 

On  the  other  hand,  although  many  of  the  great  landholders 
from  varying  motives  of  self-interest,  pushed  forward  the 
Revolution,  there  were  other  great  landowners,  who,  having 
no  interest  in  trade,  and  having  benefited  well  under  British 
rule,  by  the  corrupt  use  of  which  they,  as  officials,  had  got 
their  estates,  did  not  desire  a  revolution.  These  pro-British 
landholders  organized  whole  battalions,  and  even  regiments, 
of  Americans  to  fight  in  the  royal  army,  and  personally  paid 
their  expenses  throughout  the  war. 

Once  the  Revolution  was  satisfactorily  under  way,  and  a 
sufficiency  of  the  people  were  deluded  by  the  phrases  handed 
out,  or  coerced  into  action,  and  absorbed  by  the  war,  the  real 
promoters  of  the  Revolution,  backed  by  all  the  power  of*  the 


THE  REAL  FORCES  OF  THE  REVOLUTION          85 

governing  class,  proceeded  on  two  special  lines  of  policy. 
These  were  carried  on  at  the  same  time,  and  both  with  the 
most  immediate  success. 

Propertyless  Disqualified  from  Voting. 

The  first  of  these  operations  was  to  counteract  and  annul 
in  every  possible  way  the  dangerous  agitation  to  confer  equal 
rights  on  all.  At  the  very  height  of  the  Revolution,  State 
constitutions  were  adopted,  depriving  the  propertyless  of  any 
voice  in  the  government.  Realizing  what  a  popular  impression 
the  promise  of  equal  rights  made,  Article  I  of  the  Massachu- 
setts Convention  of  1780  began  with  the  clause  that  among 
the  rights  of  all  men  was  "  that  of  acquiring,  possessing  and 
protecting  their  property."  8 

This  was  a  palpable  catchword  and  counterfeit.  In  the  text 
of  the  Constitution  itself,  a  strict  property  qualification  for 
voters  was  established.  No  person  was  allowed  to  become  a 
State  Senator  who  did  not  have  a  freehold  in  the  Common- 
wealth of  £300  at  least,  or  a  minimum  personal  estate  of 
£6oo.°  Only  men  having  a  freehold  estate  in  Massachusetts 
of  an  annual  income  of  £3,  or  any  estate  of  the  value  of  £60, 
could  vote  for  a  State  senator.10  To  be  eligible  for  election 
to  the  Massachusetts  House  of  Representatives,  the  candidate 
had  to  possess  a  freehold  of  the  value  of  £100  in  his  town, 
or  any  rateable  estate  of  the  value  of  £200."  No  man  could 
be  seated  as  governor  unless  he  had  a  freehold  in  the  Common- 
wealth of  the  value  of  £1,000,  and  declared  himself  of  the 
Christian  religion.12 

The  two  most  prominent  advocates  of  this  constitution  in 
the  Massachusetts  convention  were  Elbridge  Gerry  and  Na- 
thaniel Gorham,  both  conspicuous  members  of  the  subsequent 
Federal  Convention  which  framed  the  Constitution  of  the 

8  "  Journal  of  The  Massachusetts  Convention.  1779-1780,"  p.  193. 
8  Ibid.,  232.  ™  Ibid.,  231.  "  Ibid.,  234.  lz /&/</.,  235. 


86  HISTORY   OF   THE   SUPREME   COURT 

United  States,  and  one  of  whom,  Gorham  (as  will  be  de- 
scribed), manipulated  the  Massachusetts  legislature  to  grant 
him  and  Oliver  Phelps  an  enormous  area  of  land  comprising 
many  millions  of  acres  (over  which  Massachusetts  had  juris- 
diction) in  New  York  State.13 

These  are  significant  examples  of  qualifying  constitutional 
enactments  adopted  in  some  of  the  States  during  the  period 
of  the  Revolution.  In  other  colonies,  particularly  the  slave- 
holding  regions  where  the  populace  was  less  active  than  in 
the  North,  the  demands  of  the  upper  class  could  be  formu- 
lated more  openly.  The  Maryland  Bill  of  Rights,  adopted 
November  3,  1776,  stated  that  "  the  elections  ought  to  be  free 
and  frequent,"  and  that  every  man  having  property  in,  a  com- 
mon interest  with,  and  an  attachment  to,  the  community,  ought 
to  have  the  right  of  suffrage."  14 

The  Constitution  of  Maryland,  adopted  five  days  later,  re- 
stricted the  right  to  vote  for  members  of  the  House  of  Dele- 
gates to  only  free  men,  having  a  freehold  of  fifty  acres  of  land 
in  their  county,  and  to  all  free  men  having  property  above 
£30  current  money.15  Candidates  for  the  House  of  Delegates 
were  required  to  have  in  the  State  real  or  personal  property 
of  more  than  £500  current  money.16  Fifteen  State  Senators 
were  to  be  elected  every  five  years  by  a  body  of  electors  — 
"  men  of  wisdom,  experience  and  virtue."  17  To  be  elected  a 
State  Senator,  the  possession  in  the  State  of  real  and  per- 
sonal property  more  than  the  value  of  £1,000  current  money 
was  required.18  The  Council  to  the  Governor,  it  was  further 
provided,  was  to  be  elected  by  the  Legislature,  and  was  to  be 

13  See  details  later  in  this  chapter. 

14  "  The  Laws  of  Maryland  From  The  End  of  The  Year  1790,"  etc.. 
Vol.  Ill :  p.  v. 

15  Ibid.,  xi. 

16  Ibid. 

17  Ibid.,  xiv.  _  Here  we  see  a  precedent  later  followed  by  the  "  Fa- 
thers "  in  providing  for  indirect  election  of  President  and  Vice-Presi^ 
dent. 

18  Ibid. 


THE   REAL   FORCES   OF   THE    REVOLUTION  87 

composed  of-  only  such  selections  as  had  a  freehold  of  lands 
and  tenements  of  more  than  £1,000  current  money.10  No  man 
could  be  chosen  for  the  Continental  Congress  unless  he  pos- 
sessed the  same  extent  of  estate;  and  all  candidates  for  gov- 
ernor were  excluded  except  those  having,  in  the  State  real 
and  personal  property  of  more  than  £5,000  value,  current 
money,  of  which  estate  at  least  £1,000  was  required  to  be  in 
freehold.20  These  qualifications  held  fast  for  thirty-three 
years  after  the  Declaration  of  Independence. 

On  July  2,  1776,  two  days  before  the  adoption  of  the  Dec- 
laration of  Independence  (or,  according  to  some  authorities, 
on  the  very  day  of  its  adoption),  the  Provincial  Congress  of 
New  Jersey  enacted,  among  other  requirements,  that  no  man 
could  vote  unless  he  was  "  worth  £50  proclamation  money, 
clear  estate  within  the  colony."  21  This  law  continued  in  force 
for  more  than  half  a  century  after  the  adoption  of  the  Declara- 
tion of  Independence.  The  old  Rhode  Island  act  of  1762, 
making  necessary  the  possession  of  £40  to  become  a  qualified 
voter,  remained  in  force  for  more  than  eighty  years.  The 
New  York  Constitution  of  1777  also  hedged  in  the  right  to 
vote  with  strong  property  qualifications  which  were  not  abol- 
ished until  fifty-six  years  after  the  Declaration  of  Independ- 
ence. The  Constitution  of  all  the  other  colonies  contained 
similar  provisions.  In  South  Carolina  the  elector  had  to  pos- 
sess fifty  acres  of  land ;  in  Connecticut  he  had  to  have  a  certain 
income,  and  in  Massachusetts  an  income  of  £3  sterling,  or  a 
capital  of  £60. 

As  late  as  1792,  the  drafters  of  the  New  Hampshire  Con- 
stitution, well  cognizant  of  its  value  for  popular  effect,  inserted 
in  the  Constitution  of  that  State  adopted  in  that  year  the 
appealing  philosophic  generality : 

"  Section   II.  All  men  have  certain  natural,  essential  and 

™  Ibid.,  xv. 

20  Ibid.,  xvi. 

21 1  Laws  of  New  -Jersey,  p.  4. 


88  HISTORY   OF   THE   SUPREME   COURT 

inherent  rights,  among  which  are  the  enjoyment  and  defend- 
ing life  and  liberty,  acquiring,  possessing  and  protecting  prop- 
erty ;  in  a  word,  of  seeking  and  obtaining  happiness."  22  This 
was  an  abstraction,  and  was  intended  to  be.  In  the  succeed- 
ing clauses,  property  qualifications  were  embodied,  debarring 
from  the  electorate  all  who  lacked  property.  A  member  of 
the  New  Hampshire  lower  house  had  to  have  an  estate  within 
his  district  of  the  value  of  £100,  one-half  of  which  was  to  be 
a  freehold  in  his  own  right,  and  he  had  to  be  of  the  Protestant 
religion ;  a  State  Senator  was  required  to  own  an  estate  of 
£200  in  the  State,  and  to  be  a  Protestant;  no  man  could  be 
governor  unless  he  possessed  an  estate  of  ^500.  He,  too,  had 
to  be  of  the  Prote*stant  faith.23 

Old  Conditions  Maintained. 

The  Revolution  gradually  brought  about  certain  reforms, 
such  as  the  abolition  of  entail  and  primogeniture  by  which 
estates  could  no  longer  be  bequeathed  exclusively  to  the  eldest 
son,  and  it  compelled  the  recognition  of  certain  principles  of 
democracy.  But  these  reforms  did  not  alter  the  condition  of 
the  workers ;  what  they  really  did  was  to  allow  the  widest 
latitude  to  the  matured  or  embryo  native  capitalists,  giving 
them  a  free  hand  for  the  unfettered  development  of  their 
plans.  The  iron  laws  designed  to  shackle  the  working  class 
continued,  or  were  supplemented  by  others  equally  rigid.  Im- 
prisonment for  debt  continued  inexorably  in  some  States  for 
half  a  century  more,  and  other  like  or  worse  conditions  ob- 
tained. 

In  the  very  city  in  which  the  Declaration  of  Independence 
was  drawn  up,  convicts  were  long  regularly  imported,  and 
sold  like  slaves.  Of  this,  the  first  Congress  of  the  United 

22 "  Constitution  and  Laws  of  the  State  of  New  Hampshire,"   etc. 
(Edition  of  1805),  p.  i. 
23  Ibid.,  pp.  8-10. 


THE    REAL   FORCES   OF    THE   REVOLUTION  89 

States  was  forced  to  complain;  and  on  March  27,  1789,  the 
Pennsylvania  Legislature  passed  an  act  declaring: 

"  Whereas,  it  has  been  represented  to  the  House  by  the 
U.  S.  in  Congress  assembled,  that  a  practice  prevails  of  im- 
porting felons  convict  into  this  State  under  various  pretences, 
which  said  felons  convict  so  imported,  have  been  sold  and 
dispersed  among  the  people  of  this  State,  whereby  much  in- 
jury has  arisen  to  the  morals  of  some,  and  others  have  been 
greatly  endangered  in  their  lives  and  property ;  for  remedy 
thereof," —  and  the  act  went  on  to  decree  a  penalty  of  three 
months'  imprisonment  and  £50  fine,  in  addition  to  costs  of 
prosecution  for  any  captain  or  master  who  violated  the  act  by 
importing  convicts.24 

In  the  following  year,  on  April  5,  1790,  the  Pennsylvania 
Legislature  passed  an  act  to  "reform"  the  Penal  Laws  of 
that  State.  The  preamble  beneficently  stated  that  "  it  is  hoped 
that  the  addition  of  unremitted  solitude  to  laborious  employ- 
ment, as  far  as  it  can  be  effected,  will  contribute  as  much  to 
reform  as  to  deter." 25  For  robbery,  burglary,  sodomy  and 
certain  other  crimes,  all  of  the  lands,  tenements,  goods  and 
chattels  of  the  criminal  were  to  be  forfeited,  and  he  was  to 
serve  ten  years  in  prison  at  hard  labor.  This  was  a  grimly 
humorous  statute;  virtually  none  of  those  convicted  had  any 
lands,  tenements,  etc.  Anyone  convicted  of  stealing  goods 
to  the  value  of  twenty  shillings  or  more,  was  subject  to  a  sen- 
tence of  not  more  than  three  years  at  hard  labor,  and  for 
the  theft  of  goods  under  twenty  shillings  one  year  at  hard 
labor. 

Section  XIII  prescribed  in  detail  how  the  convicts  were  to  be 
treated.  They  were  to  be  clothed  in  uniforms  of  the  coarsest 
material ;  the  males  were  to  have  their  heads  and  beards  close 
shaven  at  least  once  a  week,  and  to  be  sustained  upon  bread, 

2*  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  Ill :  344-347. 
25  Ibid.,  441.     The  solitary  cell,  it  should  be  noted,  was,  as  a  general 
institution,  exclusively  an  American  invention. 


9O  HISTORY   OF   THE   SUPREME    COURT 

Indian  meal,  "  or  other  inferior  food."  The  labor  was  to  be 
"  of  the  hardest  and  most  servile  kind."  An  allowance  of 
five  per  cent,  to  the  keeper  of  the  prison  on  articles  made  by 
the  convicts  was  permitted.  But  this  gratuity  clause  was  re- 
pealed by  act  of  April  18,  1795.  If  the  convict,  according  to 
the  act  of  1790,  committed  any  infraction  of  the  rules,  he 
was  to  get  repeated  whippings,  not  exceeding  thirteen  lashes 
at  a  time,  or  he  was  to  be  disciplined  by  a  six  days'  close  con- 
finement in  cell  or  dungeon,  on  bread  and  water.26 

In  addition  to  the  great  estates  of  Tories, —  manorial  lords, 
sinectirists  and  others  who  had  remained  loyal  to  King  George 
—  confiscated  by  States  during  the  Revolution,  there  were 
vested  in  the  United  States  Government  at  about  the  time  of 
its  organization,  a  vast  area  of  public  lands  estimated  at  513,- 
200,000  acres,  some  ceded  by  States,  other  areas  acquired  by 
treaty.  What  became  of  the  best  portions  of  these,  and  who 
got  them,  and  how,  we  shall  presently  narrate.  Ample  land 
for  all  there  certainly  was ;  but  no  provision  was  made  for  dis- 
tribution to  the  poor.  The  influential  politicians,  comprising 
many  of  the  esteemed  "  Fathers  of  th^  Country/'  vip^  with 
one_another,  or  banded  together.  ta-secuceL-.enprmous  joniains 
for  their  personal  profit;  how  well  they  succeeded  the  records 


reveal. 

The  particular  provisions  that  were  made  for  the  poor  may 
be  seen,  for  instance,  in  an  act  passed  by  the  New  Hampshire 
legislature,  February  15,  1791  (and  it  was  but  a  type  of  the 
acts  passed  in  other  States),  "  for  the  punishment  of  idle  and 
disorderly  persons,  for  the  support  and  maintainance  of  the 
poor,"  etc.  It  established  more  houses  of  correction  "  for 
the  keeping  and  correcting  of  rogues,  vagabonds,  common 
beggars,  lewd,  idle  and  disorderly  persons,  and  in  which  to 
employ  the  poor."  If  no  such  institutions  existed  in  any 

26  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  Ill :  440-454.  The  administer- 
ing of  lashings  was  repealed  by  the  act  of  1795,  but  the  close  confine- 
ment in  dungeons  on  bread  and  water  was  continued. —  Ibid.,  Vol.  V: 

121. 


THE   REAL   FORCES   OF   THE    REVOLUTION  9! 

community,  prisons  could  be  used.  Punishment  was  not  to 
exceed  hard  labor,  or  wearing  fetters  and  shackles  during 
confinement,  or  whipping  to  the  number  of  thirty-nine  stripes. 
Among  others  specified,  rogues,  vagabonds,  stubborn  servants 
or  children,  persons  using  "  subtle  craft,"  and  common  night 
walkers  could  be  incarcerated. 

Overseers  were  also  empowered  to  bind  out  by  contract 
for  a  year's  term  the  poor  and  the  idle ;  the  wages  were  to  be 
paid  to  the  overseers,  who  were  to  apply  them  to  the  main- 
tenance of  the  person,  family  or  children  concerned.  But 
poor  children  could  be  bound  out  till  of  age  —  males  until 
they  were  twenty-one  years  old,  and  girls,  until  eighteen.27 
It  was  by  means  of  such  acts  that  the  factory  capitalists  ob- 
tained their  constant  and  cheap  supply  of  woman  and  child 
labor. 

Inquiry  Into  Reasons  and  Causes. 

Meanwhile,  during  the  Revolution  and  the  drafting  of  the 
Constitution,  what  were  the  actual  acts  of  the  majority  of 
the  signers  of  the  Declaration  of  Independence,  and  of  those 
who  drew  up  the  Constitution?  These  were  the  functionaries 
who  were  among  the  most  active  and  influential  in  the  differ- 
ent colonies.  They  were,  many  of  them,  officials  of  the  Con- 
tinental Government,  and  later  held  the  highest  posts  in  the 
State  or  Federal  Governments.  While  acts  were  being  passed 
disqualifying,  dispossessing  and  imprisoning  the  poor,  what 
were  the  interests  and  motives  animating  those  great  digni- 
taries of  the  Revolution  ?  Were  they  the  heroic,  incorruptible 
patriots  it  has  been  the  fashion  to  represent  them?  Some, 
like  Jefferson,  no  doubt  were  actuated  by  the  highest,  and 
.for  the  age,  most  democratic,  principles.  But  what  of  the 
majority? 

In  these  painful   questions   lie   most   vital    answers   which 

27 "  Constitution  and  Laws  Of  The  State  of  New  Hampshire/'  etc. 
(Edition  of  1805),  pp.  299-301, 


92  HISTORY   OF    THE   SUPREME    COURT 

will  show  the  economic  interests  behind  the  successive  actions 
of  most  of  the  men  who  made  the  Constitution  of  the  United 
States,  and  will  throw  the  most  vivid  light  upon  the  future 
construction  and  career  of  the  Supreme  Court  of  the  United 
States.  This  exposition  will  reveal  the  special  reasons  why 
it  was  that  certain  clauses,  of  the  most  tremendous  impor- 
tance, were  inserted  in  the  Constitution.  No  longer  does  it 
satisfy  authentic  historical  inquiry  to  assert  grandiloquently 
that  acts  and  instruments  have  resulted  from  disinterested 
altruism.  Men  and  women  are  the  products  of  environment, 
and  are,  when  grouped  into  classes,  swayed  by  the  varying 
interests  from  which  they  benefit,  or  the  aims  from  which 
benefit  is  expected.  What  were  the  particular  material  in- 
terests of  most  of  the  leaders  of  the  Revolution,  and  those 
of  the  drafters  of  the  Constitution  of  the  United  States? 

Whatever  pretensions  they  assumed  in  public,  for  the  awe 
and  wonderment  of  the  populace,  and  for  the  better  molding 
of  the  mass  to  their  ends,  they,  it  must  be  said  to  their  credit, 
made  no  pretense  in  the  candor  of  their  private  circle.  None 
would  be  more  astonished  than  they,  if,  by  some  miracle, 
they  could  wake  from  the  dead  and  read  the  effusive  eulogies 
since  published  of  their  careers,  attributing  to  them  nothing 
but  excess  of  virtue  and  motives  superior  to  those  impelling 
ordinary  mortals. 

They  were  human,  all  of  them,  and  proved  it  so  to  their 
own  gratification.  Nor  did  they  profess  to  pose  as  humani- 
tarians, engrossed  in  promoting  the  good  of  the  whole  human 
race.  Their  acts  revealed  that  the  special  interests  they-  were 
furthering  were  those  of  a  particular  class,  and  that  class 
their  own.  Many  of  them  left  the  fullest  evidences  in  the 
real  annals  that  they  were  not  so  inactive  as  to  allow  splendid 
opportunities  for  self -enrichment  to  pass  ignored.  During 
the  Revolution  and  afterwards,  they  and  other  notabilities  took 
instant  advantage  of  their  power,  their  inside  knowledge  of 
affairs,  and  the  stress  of  the  times  to  accomplish  schemes  in- 


THE    REAL   FORCES   OF   THE    REVOLUTION  93 

volving  the  most  extensive  land  jobbing,  and  the  procurement 
of  other  self -beneficial  legislative  acts.  The  Revolution  was 
as  excellent  a  cover  for  the  successful  carrying  out  of  these 
enterprises,  as  was  the  Civil  War,  nearly  a  century  later, 
when  the  most  colossal  frauds  and  thefts  were  consummated. 
Among  those  participating  in  this  jobbery  during,  and  after, 
the  Revolution  were  several  who  became  distinguished  Jus- 
tices of  the  Supreme  Court  of  the  United  States.  But  even 
more: 

Between  the  large  and  ambitious  projects  and  schemes  then 
accomplished  or  imitated,  and  the  subsequent  character  and 
decisions  of  the  Supreme  Court  of  the  United  States,  there 
lay  a  connection  and  sequence  of  the  very  gravest  signifi- 
cance. 

Absentee  Landlords  Covertly  Retain  Control. 

One  of  the  long-standing  grievances  of  bona-fide  settlers 
or  those  of  that  intention,  was  not  only  a  grievance  arising 
from  the  excessive  and  highly-centralized  monopolization  of 
accessible  land.  The  blighting  evils  of  absentee  landlord 
ownership  had  also  implanted  deep  popular  hatreds  and  bitter- 
ness. Immense  tracts  of  land  in  New  York,  Pennsylvania, 
Virginia,  the  Carolinas  and  other  sections  were  held  wholly 
or  partly  by  British  lords,  or  by  companies  composed  of  titled 
nobles  and  native  personages.  One  of  these  powerful  Brit- 
ish companies  for  instance,  was  the  Principio  Company,  em- 
bracing a  number  of  British  lords  and  Maryland  and  Virginia 
manorial  lords.  In  this  company  "  a  certain  Mr.  Washington, 
a  subject  of  the  State  of  Virginia,"  had  an  undivided  one- 
twelfth  interest28 — but  whether  it  was  the  original  and  im: 
mortal  George,  the  Maryland  act  of  1781  does  not  say.  There 
were  also  many  other  companies,  with  some  of  which  we  shall 
have  to  deal  anon.  The  property  of  the  British  and  native 

28  "  Laws  of  Maryland,  1682-1784,"  Vol.  I,  Chap.  23. 


94  HISTORY   OF  THE   SUPREME   COURT 

Tories  was  confiscated  by  general  legislative  acts  during  the 
Revolution,  the  acts,  however,  reserving  to  patriotic  share- 
holders their  rights. 

But  the  confiscatory  laws  were  often  fraudulently  evaded, 
and  their  force  was  later  stealthily  diminished  by  legislative 
enactment.  "  By  our  laws,"  wrote  Jefferson,  in  1781 -178,2, 
referring  to  Virginia,29  "  the  same  as  the  English  in  this 
respect,  no  alien  can  hold  lands,30  nor  alien  enemy  maintain  an 
action  for  money  or  other  moveable  things.  Lands  acquired 
or  held  by  aliens  become  forfeited  to  the  State;  and,  on  an 
action  by  an  alien  enemy  to  recover  money  or  other  moveable 
property,  the  defendant  may  plead  that  he  is  an  alien  enemy. 
.  .  .  By  our  separation  from  Great  Britain,  British  subjects 
became  aliens,  and,  being  at  war,  they  were  alien  enemies. 
Their  lands  were,  of  course,  forfeited,  and  their  debts  irre- 
coverable. The  assembly,  however,  passed  laws  at  various 
times,  for  saving  their  property.  They  first  sequestered  their 
lands,  slaves  and  other  property  on  their  farms  in  the  hands  of 
commissioners,  who  were  mostly  the  confidential  friends  or 
agents  of  the  owners,  and  directed  their  clear  profits  to  be 
paid  into  the  treasury."  Jefferson  further  says  that  monies  so 
turned  were  declared  to  be  the  property  of  the  British  subject, 
and  if  used  by  the  State  were  to  be  repaid. 

Of  the  great  manorial  estates,  however,  on  which  the  native 
landgraves  lived,  many  continued  intact.  The  Livingstons, 
the  Schuylers,  the  Van  Cortlandts,  the  Van  Rensselaers  and 
others  in  New  York,  the  Carrolls  in  Maryland  and  land  mag- 
nates elsewhere  not  only  discreetly  espoused  the  Revolution- 
ary cause,  but  were  signers  of  the  Declaration  of  Independ- 
ence, members  of  the  Federal  Constitutional  Convention  and 
of  the  various  State  Constitutional  Conventions.  In  this 

29  Jefferson's  "Notes  on  The  State  of  Virginia"  (Edition  of  1803), 

pp.  211-212. 

30  The  astonishing  connection  between  this   fact  and  the  operations 
of  a  certain  Chief  Justice  of  the  Supreme  Court  of  the  United  States 
is  explained  fully  later  in  this  work. 


THE   REAL   FORCES   OF   THE   REVOLUTION  93 

group  were  to  be  found  the  leading  spirits  of  a  party  plan- 
ning surreptitiously,  and  sometimes  almost  openly,  for  the  es- 
tablishment of  a  monarchy.  In  the  "  Secret  Debates,"  the 
speech  of  Luther  Martin,  a  delegate  from  Maryland  to  the 
Federal  Constitutional  Convention,  is  given  in  full,  in  which 
speech  he  told  of  a  powerful  secret  party  favoring  the  es- 
tablishment of  a  monarchical  form  of  government.  Begin- 
ning in  1776,  a  change  was  introduced  in  the  laws  by  which 
the  old  aristocratic  power  of  entailing  the  estate  to  the  eldest 
son  was  gradually  abolished.  In  that  year,  on  motion  of  Jef- 
ferson, it  was  effaced  in  Virginia,  and  was  suppressed  in  New 
York  in  I786.31  Subsequently,  in  the  next  five  decades  the 
practice  was  abolished  in  Georgia  and  North  Carolina,  and  in 
the  newer  States,  Kentucky,  Tennessee  and  Missouri.  In  the 
original  States  of  Vermont  and  South  Carolina,  and  in  Loui- 
siana and  other  States  later  formed,  the  principal  of  entail  was 
never  in  statute.  The  reason  for  the  abolition  of  the  entail, 
according  to  Chancellor  Kent,  was  that  it  tended  "  to  favor 
the  free  circulation  of  property." 

It  was  the  abolition  of  the  entail  that  introduced  an  ele- 
ment of  disintegration  in  the  individual  holdings  of  great  es- 
tates; where  formerly  the  dimensions  of  the  estates  were  pre- 
served and  usually  enlarged  from  generation  to  generation, 
the  paternal  property  now  was  to  be  equally  divided  among 
his  children,  but  only  so  in  case  the  will  did  not  specifically 
declare  otherwise.  The  father  still  was  endowed  by  law 
with  a  large  power  of  disposing  of  his  property  by  testament 
as  he  pleased. 

But  the  manorial  lords  were  not  immediately  dislodged. 
For  half  a  century  many  of  the  old  seignorial  landed  families 
remained  potent  political  and  social  factors  by  reason  of  their 
ancient  wealth,  and  by  stimulation  from  the  new  acquisitions 
of  land  and  the  added  wealth  that  they  obtained  from  .various 
projects  during,  and  after,  the  Revolution.  Added  to  them 

31  Revised  Statutes,  Vol.  Ill :  Appendix,  p.  48. 


O/5  HISTORY    OF   THE    SUPREME    COURT 

there  came  forward  a  new  self-created  division  of  the  landed 
class,  often  cohering  in  schemes  with  them,  and  sometimes 
separate.  This  new  class  was  composed  of  certain  leaders  of 
the  Revolution  and  other  powerful  politicians  and  rich  mer- 
chants or  adventurers  who  contrived  to  get  vast  areas  of  the 
public  domain,  and  valuable  banking,  canal,  turnpike  and  other 
privileges.  These  two  sections  formed  the  newer  landed  class 
which  was  the  paramount  class  at  the  time  of  the  organization 
of  the  Supreme  Court  of  the  United  States,  and  for  fifty  years 
thereafter. 

Creation  of  the  Newer  Landed  Class. 

The  creation  by  law  of  a  new  division  of  the  all-powerful 
landed  class  went  on  steadily  during  the  critical  years  of  the 
Revolution.  These  newer  landholders  became  vested  with 
large  areas  of  what  had  been  public  land ;  and  the  time  came 
when  they  and  their  successors  in  practice  shared,  and  then 
outranked,  in  importance  the  manorial  lords. 

Although  apparently  disconnected,  some  of  the  facts  given 
here  are  chronologically  detailed  for  the  important  bearing 
that  they  have.  They  show  the  methods  employed  by  the 
newer  section  of  the  landed  class,  and  exhibit  the  plans  and 
interests  of  many  of  the  men  who,  in  1787,  drafted  the  Consti- 
tution of  the  United  States  and  those  of  the  class  represented 
by  those  delegates.  Furthermore,  in  order  to  reveal  what 
the  drafters  of  the  Constitution  were  meditating  and  what 
they  were  secretly  preparing  for  at  the  very  time  they  were 
creating  that  document,  it  has  seemed  advisable  here  to  de- 
scribe the  ultimate  result  of  some  of  the  land-grasping 
schemes,  even  although  in  point  of  time,  some  of  them  overlap 
the  date  of  the  adoption  of  the  Constitution.  Finally,  these 
facts  in  detail  and  in  mass  have  their  relation  to  the  subse- 
quent course  of  the  United  States  Supreme  Court.  It  may 
be  said  that  only  a  few  instructive  examples  of  the  widespread 
appropriation  of  the  soil  by  a  few,  are  given  here. 


THE   REAL    FORCES   OF    THE    REVOLUTION  97 

The  Revolution  proved  to  be  an  auspicious  time  for  the 
consummation  of  the  boldest  plans  in  acquiring  property  and 
power.  Richard  Henderson,  a  Virginian,  had  professed  to 
buy,  in  Kentucky,  a  tract  from  the  Cherokee  Indians.  With 
Henderson  was  associated  some  of  the  most  noted  politicians 
in  Virginia.  The  pretended  purchase  was  declared  void  on 
the  ground  of  forgery.  In  October,  1778,  an  act  was  rolled 
through  the  Virginia  Legislature,  reciting  that  Richard  Hen- 
derson and  Company  had  "  at  great  expense  "  made  a  pur- 
chase from  the  Cherokee  Indians,  and,  "  although  the  same 
has  been  declared  void,  yet  this  Commonwealth  is  likely  to 
gain  great  advantages  therefrom  by  increasing  its  inhabitants 
and  establishing  a  barrier  against  the  Indians."  It  was, 
therefore,  enacted  that  Richard  Henderson  and  Company 
should  be  vested  with  a  grant  of  100,000  acres  in  fee  on  the 
Ohio  and  Green  rivers.32 

When  the  United  States  Government,  many  years  later,  was 
making  the  treaty  of  Hopewell  with  the  Cherokees,  that  tribe 
claimed  a  considerable  area  of  Kentucky.  To  the  astonish- 
ment of  the  Cherokees,  the  United  States  Commissioners  pro- 
duced what  purported  to  be  the  original  Indian  deed  convey- 
ing the  land  in  that  district  to  Henderson.  Tassell,  one  of 
the  Indian  delegates,  asserted  that  the  signature  of  Ocones- 
toto  to  the  deed  was  a  forgery ;  that  Henderson  had  asked  for 
only  a  small  tract  of  land  on  the  Kentucky  River  on  which  to 
feed  his  horses.  Informed  that  all  parties  to  the  deed  were 
dead,  that  the  land  had  been  sold  by  the  company  to  settlers, 
and  that  the  deed  must  stand,  Tassell  replied  that  they  would 
let  Kentucky  go,  but  that  he  was  sorry  Henderson  was  dead ; 
he  "  would  like  to  have  told  him  that  he  was  a  liar."  33 

The  Virginia  act  of  May,  1779,  confirmed,  as  we  have  seen, 
the  extensive  grant  of  200,000  acres  to  George  Washington 

32  "  Revised  Code,  Laws  of  Va."  (Edition  of  1819),  Appendix  II :  353- 
354.     At  one  time  Kentucky,  Ohio  and  other  present  States  were  part 
of  Virginia. 

33  "  American  State  Papers  :  Indian  Affairs,"  Vol.  1 :  42. 


98  HISTORY  OF  THE  SUPREME  COURT 

and  other  military  officers,  Savage's  grant  of  28,627  acres, 
and  other  large  grants ;  revealing  that  Washington  knew  both 
the  art  of  war  and  that  of  convincing  legislatures,  and  that 
he  could  manage  both  at  the  same  time.  Large  grants,  by 
official  legislative  favor,  abounded  in  Virginia,  and  especially 
in  Kentucky  and  what  were  at  that  time  other  parts  of  Vir- 
ginia, then  being  newly  opened  to  settlenfent.  Speculators 
and  companies  of  speculators  rushed  forward  to  appropriate 
the  best  areas  of  land,  and  to  anticipate  the  settlers,  who 
were  then  put  under  necessity  of  buying  from  them.  Benja- 
min Borden  had  one  tract  of  92,000  acres  in  one  body,  on  the 
waters  of  the  James  River,  and  he  also  owned  large  tracts  on 
the  Catawba  River,  and  in  other  States.34  On  December  15, 
1772,  the  Virginia  Legislature  granted  to  George  Muse,  Adam 
Stephen  and  five  other  persons,  51,302  acres  on  the  Ohio 
River ;  the  next  year  these  men  divided  it  among  themselves.33 
George  Clymer,  of  Pennsylvania,  one  of  the  delegates  to  the 
Federal  Constitutional  Convention,  in  1787,  secured,  with  two 
associates,  on  May  30,  1784,  a  survey  for  a  tract  of  11,000  acres 
in  Jefferson  County,  Kentucky.  He  waited  twenty-two  years, 
until  Kentucky  was  filling  with  settlers,  and  then  secured  a 
patent  from  Governor  Greenup,30  thus  avoiding  all  payment 
of  taxes  in  the  meantime.  Clymer's  share  of  the  land  was 
one-third ;  he  never  saw  Kentucky ;  as  a  non-resident  he  was 
an  example  of  the  large  absentee  landlord  element  then  ap- 
propriating the  public  domain. 

Judges  Make  Grants  to  Themselves. 

The  judges  of  Virginia  Courts  usurped  power  in  granting 
lands,    and    granted    great    tracts    to    themselves.     Winthrop 

34  See  case  of  Harvey  and  wife  vs.  Borden,  Washington's  Va.  Re- 
ports, Vol.  II:  156  (1795). 

35  Case  of  Hepburn  vs.  Auld,  Cranch's  Reports,  Supreme  Court  of 
the  United  States,  Vol.  V :  264. 

30  Case  of  Lessee  of  George  Clymer  ct  al.  vs.  Dawkins,  Howard's 
Reports,  Supreme  Court  of  the  U.  S.,  Vol.  Ill :  675. 


THE  REAL  FORCES  OF  THE  REVOLUTION  99 

Sargent,  Governor  of  the  Northwest  Territory,  wrote  from 
Vincennes,  July  31,  1790,  to  President  Washington  detailing 
the  gross  frauds  in  seizing  land,  and  the  long  continuing  for- 
gery of  deeds. 

"  A  court  of  civil  and  criminal  jurisdiction,"  he  continued, 
"  established  at  this  place  by  J.  Todd,  Esq.,  under  the  au- 
thority of  Virginia,  in  June  1779,  and  who  eked  out  their  ex- 
istence to  the  summer  of  1787,  have,  during  that  long  period, 
contrived  to  make  large  grants  of  land,  even  by  their  own 
acknowledgements,  and  without  more  authority  for  doing  so 
than  is  set  forth  in  No.  9  [a  document  submitted].  Many  of 
these  concessions  which  have  been  exhibited  to  me,  they  deny 
to  have  any  knowledge  of ;  and  indeed,  there  are  some  reasons 
to  conclude  they  may  have  been  forged  in  the  office  of  Mr. 
LeGrand,  before  mentioned,  who  was  a  servant  of  the  court, 
and  in  whose  handwriting  the  deeds  have  all  been  made 
out."  37 

Considering  Governor  Winthrop  Sargent's  activities  at  that 
time  in  the  fraudulent  operations  of  the  Ohio  Company  of 
which  he  was  one  of  the  principal  promoters  and  owners  (see 
later  in  this  chapter),  the  question  fairly  arises  as  to  whether 
Sargent  and  his  associates  had  designs  themselves  upon  that 
portion  of  the  Northwest  Territory.  But  so  far  as  his 
charges  against  the  judges  were  concerned,  they  were  fully 
borne  out  by  the  statement  of  a  successor.  In  a  communica- 
tion from  Vincennes,  dated  January  19,  1802,  addressed  to 
James  Madison,  Secretary  of  State,  and  laid  before  Congress 
by  President  Jefferson  in  a  message,  on  February  18,  1802, 
General  William  Henry  Harrison,  as  Governor  of  the  North- 
s'' "  American  State  Papers :  Public  Lands,"  Vol.  1 :  10.  (Doc.  No.  4.) 
Were  Sargent's  exposures  intended  to  divert  attention  from  what  his 
own  appointees  were  doing?  Thus,  Judge  Vanderburgh,  appointed  a 
United  States  Commissioner  for  the  disposition  of  lands,  by  Gov. 
Sargent,  held  the  conveyances  to  him  of  thirty-four  distinct  claims, 
embracing  a  large  area  of  land,  which  he  had  got  while  occupying  that 
post.  Later,  Vanderburgh  surreptitiously  obtained  a  confirmation  of 
these  claims  from  General  John  Gibson,  Secretary  of  Indiana  Territory. 
Ibid.,  Vol.  VII :  698.  (Doc.  No.  1333.) 


IOO  HISTORY  OF  THE   SUPREME   COURT 

west  Territory,  confirmed  these  charges  of  judicial  land 
frauds. 

"  The  circumstances,"  he  reported,  "  mentioned  in  this  let- 
ter I  have  considered  of  sufficient  importance  to  be  communi- 
cated to  the  President.  The  court  established  at  this  place 
under  the  authority  of  the  state  of  Virginia  in  the  year  1780 
(as  I  have  before  done  myself  the  honor  to  inform  you)  as- 
sumed to  themselves  the  right  of  granting  lands  to  every 
applicant.  Having  exercised  this  power  for  some  time  with- 
out opposition,  they  began  to  conclude  that  their  right  over 
the  land  was  supreme. 

"  Accordingly,  an  arrangement  was  made  by  which  the 
whole  country  to  which  the  Indian  title  was  supposed  to  be 
extinguished  was  divided  among  the  members  of  the  court, 
and  orders  to  that  effect  entered  upon  their  journals,  each 
member  absenting  himself  from  the  court  on  the  day  that 
the  order  was  to  be  made  in  his  favor,  so  that  it  might  appear 
to  be  an  act  of  his  fellows  only.  The  tract  thus  disposed  of 
extends  on  the  Wabash  24  leagues  from  La  Pointe  Coupee  to 
the  mouth  of  the  White  river,  and  forty  leagues  into  the 
country  west  and  30  east  from  the  Wabash,  excluding  only 
the  land  immediately  around  the  town,  which  had  before  been 
granted  to  the  amount  of  20,000  or  30,000  acres."  38  Hun- 
dreds of  thousands  of  acres  were  thus  seized  by  the  judges, 
sold  to  the  speculators,  and  resold  to  settlers. 

Important  as  are  the  details  of  these  fraudulent  methods, 
even  more  important  is  the  fact  here  brought  out,  of  the 
usurpation  of  power  by  the  courts,  and  the  additional  fact 
that  because  the  other  courts  and  the  officials  passively  acqui- 
esced, therefore,  it  was  held  as  ceasing  to  be  usurped  and  be- 
coming a  recognized  power  of  the  court.  These  practices, 
as  will  be  seen  in  the  following  chapters,  had  momentous 

38  "  American  State  Papers:  Public  Lands,"  Vol.  I:  123.  The  North- 
west Territory  was  formed  by  ordinance  of  Congress  in  1787.  It  com- 
prised the  present  States  of  Ohio,  Indiana,  Illinois,  Michigan,  Wisconsin 
and  Minnesota  east  of  the  Mississippi.  Slavery  was  prohibited  in  it. 


THE   REAL   FORCES   OF   THE   REVOLUTION  IOI 

results  both  in  the  Constitutional  Convention  and  in  the  claims 
later  made  by  the  Supreme  Court  of  having  the  inherent 
power  to  set  aside  laws  as  unconstitutional.  And  what  was 
subsequently  accomplished  under  that  doctrine  of  acquies- 
cence will  be  clearly  seen  as  we  proceed. 

In  the  light  of  these  frauds,  the  Virginia  act  of  1799,  di- 
rected at  fraudulent  obtaining  of  land  warrants,  was  too 
evidently  farcical  except  in  its  application  to  the  uninfluen- 
tial.  It  declared  that  he  or  she  be  adjudged  a  felon,  without 
benefit  of  clergy,  who  should  steal  or  otherwise  purloin  any 
land  warrant,  or  who  should  alter  and  erase  any  warrant,  or 
forge  or  counterfeit  any  official  seal.39  The  practice  was 
probably  fairly  widespread  to  call  forth  this  act ;  but  many 
of  the  very  judges  expected  to  enforce  it  were  fraudulently 
acquiring  great  bodies  of  land.  It  was  customary  for  grantees 
to  assume  a  far  larger  area  than  their  grants  allowed  —  a 
practice  later  validated,  as  we  shall  see,  by  a  notable  decision 
of  Chief  Justice  Marshall.40 

On  December  10,  1785,  the  Virginia  Legislature  granted  to 
Martin  Pickett  one  grant  for  55,390  acres,  and  another  for 
44,470  acres  of  land  in  Kentucky ;  altogether,  Pickett  received 
a  gift  of  99,860  acres  in  Scott  County,  Kentucky.  Eight 
years  later  Pickett  deeded  the  patents  to  William  and  John 
Bryant,  who  conveyed  them  to  James  B.  Clarke  of  New  York 
City.41  Charles  Willing  of  the  Willing  family  of  Philadel- 
phia, who  were  associated  in  trade  with  Robert  Morris,  ob- 
tained 32,000  acres  of  land  in  Kentucky,  on  treasury  warrants 
issued  in  1784,  but  claimants  under  him  later  unsuccessfully 
had  to  contest  title  to  a  portion  of  the  grant  with  United 
States  Senator  Humphrey  Marshall,  a  cousin  of  Chief  Justice 
John  Marshall.42  On  December  27,  1786,  the  Virginian  author- 

39  "  Rev.  Code  of  Va."  (Edition  of  1819),  Appendix  II :  375. 

40  See  later,  Case  of  Taylor  vs.  Brown,  Cranch's  Reports,  Supreme 
Court  of  the  U.  S.,  Vol.  V:  235. 

41  Case  of  Lessee  of   Clark   et  al.  vs.   Courtney  et  al.,   Peters'   Re- 
ports, Supreme  Court  of  the  United  States,  Vol.  V:  319-357. 

*-  Case  of  Lewis  et  al.  vs.  Marshall  et  al.,  V  Peters,  470.     See  later. 


IO2  HISTORY    OF   THE    SUPREME    COURT 

ities  gave  a  present  to  Phillip  Barbour  of  50,000  acres  in  Ken- 
tucky; Barbour  sold  some  and  deeded  the  remainder  to 
Joshua  Barney,  who,  in  1812,  conveyed  the  land  to  John 
Oliver.43  It  was  in  evidence  that  neither  Barney  nor  Oliver 
had  ever  been  within  the  limits  of  Kentucky  until  many  years 
after,  some  three  months  before  an  ejectment  suit  was 
brought,  when  Barney  visited  Kentucky.  The  papers  in  all 
these  actions,  and  others,  abound  in  charges  of  fraud,  some 
of  which  were  rejected,  many  more  sustained. 

In  Georgia,  likewise,  large  areas  were  presented  to  a  few 
individuals.  In  1786,  one  Webb,  with  others  formed  a  land 
company,  and  agreed  to  buy  not  more  than  200,000  acres  of 
land  on  joint  account  from  the  State  of  Georgia.  The  com- 
pany received  grants  from  the  State  of  165,000  acres  in  all. 
Webb,  for  £400,  thereupon  transferred  his  interest  to  John 
McQueen,  who  assigned  it  to  Pendleton,  apparently  at  about 
the  very  time  Pendleton  was  elected  a  delegate  from  Georgia 
to  the  Federal  Constitutional  Convention.  He  never  took  his 
seat,  however.  Of  Pendleton's  connection  -with  the  great 
Georgia  land  grants,  approximating  35,000,000  acres,  ob- 
tained by  bribery  in  1795,  details  are  given  in  Chapter  IV  of 
this  work.  Wambursie,  as  the  agent  for  Webb's  (later  Pen- 
dleton's) land  company  of  1786,  sold  60,000  acres  for  $51,- 
ooo  cash,  to  Holland  capitalists.  Out  of  this  transaction  ex- 
tended litigation  developed.  The  final  ruling  by  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Pendleton  and 
Webb  against  Wambursie  ct  al.,  in  1807,  was  in  favor  of  Pen- 
dleton and  Webb.  (IV  Cranch's  Reports,  73.) 

The  Way  Prepared  for  Huge  Land  Seizures. 

Under  the  guise  of  its  being  a  measure  for  the  benefit  of 
settlers,  the  Pennsylvania  Legislature,  on  November  27,  1779, 

43  Case  of  Hawkins  et  al.  vs.  Barney's  Lessee,  V  Peters,  457-469. 
Hawkins'  lessee  claimed  some  of  the  same  land  under  a  Virginia  patent 
also. 


THE   REAL   FORCES   OF   THE   REVOLUTION  IO3 

passed  an  act  for  the  purchase  by  the  State  of  the  lands  and 
rights  of  the  Penn  family.  The  act  referred  to  the  rapid 
progress  of  neighboring  States  in  locating  and  settling  lands 
and  how  "  multitudes  of  inhabitants  are  daily  locating  from 
this  State."  This  monopolization  of  land,  the  act  said,  no 
longer  was  consistent  with  "  the  safety,  liberty  and  happiness 
of  the  good  people  of  this  commonwealth,  who,  at  the  expense 
of  much  blood  and  treasure,  have  rescued  themselves."  The 
Legislature  declared,  therewith,  that  the  soil  of  the  whole  grant 
was  vested  in  the  Commonwealth.  Quit  rents  were  abolished, 
and  the  former  powers  of  the  Proprietors  were  repealed.  As 
compensation  to  the  heirs  of  Thomas  and  Richard  Penn,  the 
late  Proprietaries,  an  appropriation  of  £130,000  was  al- 
lowed.44 This  large  payment  to  the  Penns  was  popularly  con- 
sidered as  no  better  than  rank  jobbery. 

Further  laws  followed.  The  act  of  April  10,  1781,  ordered 
the  selling  of  certain  State  property,  "  for  the  better  support 
of  the  public  credit."  The  act  of  March  12,  1783,  decreed  the 
sale  of  lands  in  the  vicinity  of  Pittsburg,  and  along  the  Ohio 
and  Allegheny  rivers  "  for  the  purpose  of  redeeming,  and 
paying  off  certificates  of  depreciation  given  to  the  officers  and 
soldiers  of  the  Pennsylvania  line,"  and  also  to  apportion  lands 
among  officers  and  soldiers.45 

By  the  act  of  April  i,  1784,  the  powers  of  the  Land  Office, 
established  by  act  of  1781,  were  extended,  and  all  lands  bought 
from  the  Indians  were  to  be  sold  at  the  rate  of  £10  for  every 
100  acres,  with  the  usual  granting,  surveying  and  patenting 
fees,  and  the  rate  of  all  lands  west  of  the  Alleghanies  was 
fixed  at  three  pounds,  ten  shillings  for  every  100  acres.46  No 
one  person  was  allowed  to  receive  a  grant  of  more  than  400 
acres.  Another  act  followed  in  1788  which  lowered  the  price 

44  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  II :  230-231.  Expressed  in 
American  currency,  the  amount  was  about  $580,000. 

« Ibid.,  398. 

40  Ibid.,  490-494.  The  purchase  price  for  lands  was  reduced  by  act 
of  April  3,  1792. 


104  HISTORY    OF    THE    SUPREME    COURT 

of  lands  in  Northumberland  and  Luzerne  counties  to  £20  per 
hundred  acres.47 

These  laws,  ostensibly  enacted  to  conciliate  the  popular 
clamor  for  land,  seemed  most  excellently  conceived.  But  they 
were  really  designed,  as  we  shall  note  at  length,  for  the  ben- 
efit of  a  powerful  clique  of  land  speculators  among  whom 
were  some  of  the  notable  "  Fathers  "  of  the  country,  as  alsr» 
some  of  the  distinguished  patriots  who  drafted  the  Constitu- 
tion of  the  United  States,  and  at  least  one  future  Justice  of 
the  Supreme  Court  of  the  United  States. 

At  the  head  of  this  clique  were  Robert  Morris  and  Gouv.- 
erneur  Morris,  both  exceedingly  influential  in  the  Continental 
Government,  in  the  Pennsylvania  Legislature  and  in  the  Fed- 
eral Constitutional  Convention.  These  two  Morrises  were  in 
no  way  related  by  blood.  Gouverneur  Morris  belonged  to  the 
landed  aristocracy  of  New  York;  his  family  owned  a  large 
estate,  and  ranked  socially  with  the  Livingstons,  the  Van 
Rensselaers,  the  Schuylers  and  other  conspicuous  landed  fam- 
ilies. The  estate  inherited  by  Gouverneur  Morris  lay  princi- 
pally in  the  district  later  called  Morrisania,  now  a  part  of  New 
York  City,  and  was  acquired  by  his  ancestors.  His  grand- 
father was  that  Chief  Justice  Lewis  Morris  who,  as  we  have 
noted  in  Chapter  I,  was  tried  for  sitting  in  his  own  cause. 
His  father  was,  for  many  years,  Chief  Justice  of  the  Admi- 
rality  Court.  From  1781  to  1785  Gouverneur  Morris  was  As- 
sistant Minister  of  Finance  under  Robert  Morris;  and  during 
that  time,  at  the  close  of  the  Revolution,  the  two  Morrises 
formed  a  commercial  partnership  in  the  East  India  and  China 
trade. 

The  Comptroller-General  of  Pennsylvania  was  John  Nich- 
olson who  shortly  afterward  became  one  of  Robert  Morris' 
partners  in  gigantic  land  transactions,  and  against  whom  im- 
peachment proceedings  were  brought  in  I794.48  Another 

47  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  Ill :  285. 

48  See  Chapter  IV  of  this  work  for  the  full  facts. 


THE   REAL   FORCES   OF   THE    REVOLUTION  IO5 

powerful  politician  concerned  was  James  Wilson,  one  of  the 
most  active  men  in  the  Federal  Constitutional  Convention, 
and  one  of  the  first  Justices  of  the  United  States  Supreme 
Court  to  be  appointed  by  Washington.  The  full  operations 
of  these  and  other  notables  are  hereafter  described  in  detail : 
how  they  and  other  politicians  fraudulently  bought  up,  at  ten 
per  cent,  of  their  value,  the  military  land  certificates  given  as 
pay  or  bounties  to  the  Revolutionary  soldiers;  and  how  by 
means  of  these,  or  by  grants  which  they  themselves,  as  mem- 
bers of  Congress  or  legislatures,  put  through,  or  by  bribery, 
secured  enormous  areas  of  public  domain. 

Robert  Morris,  Patriot  and  Financier. 

Robert  Morris,  "  the  distinguished  Financier  of  the  Revolu- 
tion," had  begun  his  career  in  the  counting  room  of  Charles 
Willing,  then  the  leading  merchant  of  Philadelphia  and  en- 
gaged in  the  West  India  trade.  Subsequently,  Morris  became 
a  member  of  the  firm  of  Willing  and  Morris,  and,  says  a 
chronicler,  they  "  employed  an  incredible  number  of  ships."  4a 
This  is  an  example  of  Morris'  trading  operations : 

In  1783  William  Alexander  (later  Lord  Sterling)  and  Jon- 
athan Williams  made  a  certain  contract  with  the  Farmers 
General  of  France  —  a  group  of  monopolists  by  royal  favor 
oppressing  the  people  of  France  to  an  intense  degree,  it  may 
be  explained,  and  thus  helping  to  precipitate  the  French  Revo- 
lution. By  this  contract  Alexander  and  Williams  were  to 
supply  the  Farmers  General  with  shipments  of  tobacco.  The 
next  year,  in  1784,  Robert  Morris  was  taken  in  as  a  partner; 
he  made  a  new  contract  with  the  Farmers  General,  calling  for 
the  delivery  of  60,000  hogsheads  of  tobacco  for  the  years 
1785,  1786,  and  1787.  Litigation,  arising  from  disagreements 
over  the  profits,  later  developed  between  the  partners.50 

49  Frost's  "  Lives  of  American  Merchants,"  59. 

50  Case   of   Alexander  vs.   Morris   and   others,   Call's    Reports    (Va. 
Court  of  Appeals),  Vol.  Ill :  87. 


IO6  HISTORY   OF    THE    SUPREME    COURT 

At  about  the  same  time  Robert  Morris  became  the  owner 
of  an  extensive  tract  of  land  in  what  is  now  West  Virginia. 
This  tract  had  been  granted  by  Virginia  on  an  order  of  survey, 
June  12,  1770,  to  Albert  Gallatin  (later  United  States  Secre- 
tary of  Treasury).  The  survey,  however,  must  have  been 
assigned  to  Robert  Morris,  for  whom  Gallatin  might  have  been 
acting;  the  patent  was  made  out  to  Morris  on  February  10, 
1786.  The  land  covered  by  the  patent  seems  to  have  been 
several  hundred  thousand  acres.  Nine  years  later,  Morris 
assigned  it  to  his  partner,  Thomas  Willing.  This  Willing  was 
the  first  president  of  the  Bank  of  the  United  States,  in  the 
establishment  of  which  monopoly  Robert  Morris  and  Alex- 
ander Hamilton  were  the  prime  movers.  The  tract  was  then 
turned  over  to  the  North  American  Land  Company  —  one  of 
Morris'  land  corporations  —  and  during  the  succeeding  de- 
cades part  of  it  was  the  subject  of  litigation.51 

Hamilton's  Business  and  Family  Relations. 

Between  Alexander  Hamilton,  John  Jay  and  Robert  Mor- 
ris, were  the  closest  business  relations,  and  even  more  inti- 
mate connections  between  Jay  and  Hamilton.  These  two  — 
Hamilton  and  Jay  —  were  among  the  strongest  factors  in 
bringing  about  the  adoption  of  the  Constitution ;  Hamilton  in 
the  Federal  Constitutional  Convention  and  Jay  in  New  York. 
Jay  was  the  son-in-law  of  William  Livingston,  a  grandson  of 
that  Robert  Livingston  the  origin  of  whose  fortune  we  have 
described  in  Chapter  I.  William  Livingston  was  a  member 
of  the  Federal  Constitutional  Convention.  Hamilton  was 
married  to  Elizabeth  Schuyler,  daughter  of  General  Phillip 
Schuyler.  In  addition  to  the  great  estates  that  the  original 
Schuyler  had  secured  by  bribing  Governor  Fletcher,  two  of 
his  descendants,  David  and  his  son  Peter,  had  in  May,  1754, 
bought  of  the  Mohawk  Indians  a  tract  of  43,000  acres  of 

51  See  Case  of  Armstrong  vs.  Morrill,  Wallace's  Reports,   Supreme 
Court  of  the  United  States,  Vol.  XIV:  121, 


THE   REAL   FORCES   OF   THE    REVOLUTION  IQJ 

land  on  the  west  side  of  Lake  Canjadarage.52  Inasmuch  as 
the  law  expressly  prohibited  grants  of  more  than  a  thousand 
acres  to  any  individual,  this  large  grant  must  have  been  ob- 
tained by  the  same  fraudulent  methods  (narrated  in  Chap- 
ter I)  by  which  Lieutenant-Governor  Clarke  and  Sir  William 
Johnson  got  their  grants.  David  and  Peter  Schuyler  also 
owned  lands  in  Canajoharie,  in  Albany,  in  New  York  City 
and  in  the  colonies  of  Rensselaerwyck  and  Surinam,  New 
York.53  General  Phillip  Schuyler  continued  to  add  to  his  es- 
tate. On  July  20,  1772,  he  bought  Cosby 's  manor,  at  Albany, 
sold  by  the  sheriff  of  Albany  for  arrears  of  quit  rent.54 

A  few  years  before  the  Revolution,  John  B.  Church,  fav- 
ored by  a  rich  uncle,  came  to  America,  and  during  the  Rev- 
olution became  an  army  contractor  in  commissary  supplies  in 
partnership  with  Jeremiah  Wadsworth,  and  got  rich.  At  the 
same  time  General  Phillip  Schuyler  was  in  charge  of  the 
commissary  department  of  the  Continental  army  in  the  north. 
"  Their  business  relations,"  we  are  told,  "  led  to  a  close  ac- 
quaintance ; "  Church  married  one  of  Schuyler's  daughters, 
thus  becoming  Hamilton's  brother-in-law.55  Subsequently, 

52  Schuyler's  "  Colonial  New  York,"  Vol.  1 :  470. 

63  Ibid. 

54  See  Case  of  Bradstreet  vs.  Huntington,  Peters'  Reports,  Supreme 
Court  of  the  United  States,  Vol.  V :  403. 

65  Monroe's  "  Pioneer  History  of  the  Phelps  and  Gorham  Purchase  " 
(Edition  of  1851),  p.  496. —  Sabine  says  that  avarice  and  rapacity  were 
common  during  the  Revolution.  "Indeed,"  he  goes  on,  "the  stock- 
jobbing, the  extortion,  the  low  arts  and  devices  to  amass  wealth  that 
were  practiced  during  the  struggle  are  almost  incredible.  .  .  .  Sol- 
diers were  stripped  of  their  miserable  pittance,  that  contractors  for 
the  army  might  become  rich  in  a  single  campaign.  Many  of  the  sellers 
of  merchandise  monopolized  articles  of  the  first  necessity,  and  would 
not  part  with  them  to  their  suffering  countrymen,  and  to  the  wives  and 
children  of  those  who  were  absent  in  the  field,  unless  at  enormous 
profits."  At  the  same  time  these  contractors  also  carried  on  traffic 
with  the  royal  troops.  This  traffic,  Sabine  relates,  "  was  immense. 
Men  of  all  descriptions  finally  engaged  in  it,  and  those  who  at  the 
beginning  of  the  war  would  have  shuddered  at  the  idea  of  any  con- 
nection with  the  enemy,  pursued  it  with  avidity.  .  .  ."  "  Loyalists  of 
the  American  Revolution,"  Vol.  1 :  141-142.  Sabine's  prefatory  histor- 
ical essay  to  his  work  is  searching,  but  by  no  means  unfriendly  to  the 
American  Revolution. 


IO8  HISTORY   OF   THE   SUPREME    COURT 

John  B.  Church,  disgusted  with  the  republican  form  of  gov- 
ernment adopted,  went  to  England,  ran  for  Parliament,  and 
lived  there  until  1797.  Hamilton  was  his  permanent  agent. 
Church's  son,  Philip,  studied  law  with  his  uncle,  Alexander 
Hamilton,  and  also  in  the  office  of  Edmund  Pendleton,  and 
became  Hamilton's  private  secretary.56 

Hamilton  Advances  Money  to  Morris. 

So  close  was  the  business  association  between  Robert  Mor- 
ris, John  Jay  (first  Chief  Justice  of  the  Supreme  Court  of 
the  United  States)  and  Alexander  Hamilton,  that  according 
to  Whitelock,  in  a  laudatory  biography  of  Jay  :  "  At  a  private 
meeting,  Hamilton  and  Robert  Morris  recommended  buying 
new  lands;  Jay,  on  the  other  hand,  advocated  suburban  prop- 
erty. By  their  respective  purchases,  the  first  lost  money,  the 
second  was  ruined,  while  the  third  realized  a  profit."  5T 

This  scant  outline  comes  very  far  from  doing  justice  to 
the  extraordinarily  large  land  ownership  and  speculations  of 
the  trio,  particularly  of  Morris.  Was  there  a  secret  compact 
or  understanding  between  them?  Whitelock  intimates  it,  but 
does.^not  say  so.  As  a  matter  of  fact,  Morris  extended  his 
land' operations  to  such  an  inordinate  degree  that  at  one  time, 
at  the  close  of  the  eighteenth  century,  he  held  the  ownership 
of  not  less  than  6,000,000  acres  of  land  in  the  State  of  New 
York,  Pennsylvania,  the  City  of  Washington  and  other  parts 
of  the  country. 

"  General  Hamilton,"  says  Monroe,  "  as  the  agenl  of  John 
B.  Church,  had  in  his  absence,  loaned  to  Robert  Morris  $80,- 
ooo,  and  taken  a  mortgage  on  Morris  Square,  Philadelphia ; 
the  lien  being  afterwards  transferred  to  100,000  acres  of  land 
on  Morris'  reserve  in  the  present  county  of  Alleghany.  In 
1800  this  mortgage  was  foreclosed,  the  land  was  sold  at  Can- 

50  "  Pioneer  History  of  the  Phelps  and  Gorham  Purchase,"  496. 
57  Whitelock's  "  Life  and  Times  of  John  Jay,"  p.  338. 


THE   REAL   FORCES   OF   THE    REVOLUTION  IOO, 

andaigua  .  .  .  and  bid  in  by  Phillip  Church  for  his  father."  58 
This  statement  of  Monroe's  regarding  Morris's  conveyances  of 
land  to  John  B.  Church  and  others  is  consistent  with  Justice 
Washington's  statement  of  the  case  in  1812  in  one  of  the 
many  suits  arising  later  from  Morris'  land  transactions.69 
Robert  Morris  also,  as  will  be  related  later,  had  the  closest 
business  associations  with  Daniel  Carroll  (another  delegate 
to  the  Constitutional  Convention)  in  vast  speculations  in  City 
of  Washington  real  estate  when  the  site  of  the  National  Cap- 
itol was  selected.  Robert  Morris  likewise  was  bound  in  bus- 
iness affairs  with  Oliver  Phelps  and  Nathaniel  Gorham  of 
Massachusetts,  the  latter  of  whom  was  an  active  delegate  in 
the  Federal  Constitutional  Convention,  and  who  (to  repeat) 
was,  with  Elbridge  Gerry  and  a  few  others,  the  most  aggres- 
sive and  potent  influence  in  securing  the  adoption  by  Massa- 
chusetts of  the  Constitution  of  the  United  States. 

Livingston   Cheats  the   Indians. 

What  was  called  the  Phelps  and  Gorham  purchase  formed 
one  of  the  great  scandals  of  the  time,  and  was  one  of  the 
factors  creating  the  popular  unrest  and  agitation,  then  styled 
insurrection. 

To  evade  the  provisions  of  the  New  York  State  Constitu- 
tion forbidding  the  purchase  in  fee  by  individuals  of  the  lands 
of  the  Indians,  a  corporation  called  the  New  York  Genesee 
Land  Company  was  formed.  -It  was  composed  of  eighty  or 
ninety  men,  "  many  of  whom  were  wealthy  and  influential ;  " 
one  of  the  most  prominent  managers  and  directors  was  John 
Livingston,  of  Livingston  Manor.60  In  1787  the  company  ob- 
tained leases,  to  endure  for  the  full  period  of  999  years,  of 
nearly  all  of  the  lands  of  the  Six  Nations  of  the  Indians,  in 

68  "  Pioneer  History  of  the  Phelps  and  Gorham  Purchase,"  447. 

59  See  Fitzsimmons  and  others  vs.  Ogden  and  others,  Cranch's  Re- 
ports, Supreme  Court  of  the  United  States,  Vol.  VII:  2. 

00  Monroe's  "  Pioneer  History  of  the  Phelps  and  Gorham  Purchase," 
106. 


IIO  HISTORY   OF  THE   SUPREME   COURT 

New  York,  for  an  annual  rent  of  two  thousand  Spanish  milled 
dollars,  and  a  definitely  stated  promise  of  a  bonus  of  $20,- 
ooo.61  To  put  the  Indian  chiefs  in  the  desired  happy  state 
of  mind  to  induce  them  to  sign,  Livingston  had  sent  out  four- 
teen sleighs  loaded  with  goods,  particularly  with  rum,  into  the 
Indian  country. 

When  the  circumstances  of  this  transaction  became  known 
to  the  white  public,  and  its  provisions  clear  to  the  Indians 
themselves,  a  tremendous  uproar  resulted.  The  Six  Nations 
accused  Livingston  of  having  cheated  them.62  Governor 
Clinton  sent  runners  to  all  of  the  Six  Nations  warning  them 
of  the  fraud  practiced  upon  them;  and  under  a  special  act 
that  popular  agitation  forced  through  the  Legislature,  he 
called  out  the  militia  to  expel  the  Lessees  —  as  the  members 
of  the  Company  were  called.  Clinton,  in  behalf  of  the  State, 
then  opened  negotiations  with  the  Indians  for  the  purchase  of 
the  land,  to  be  set  aside  as  a  "  Military  Tract  "-  —  that  is,  land 
to  be  reserved  and  to  be  exchanged  for  the  military  certifi- 
cates allotted  to  the  Continental  soldiers. 

At  the  negotiations  at  Fort  Schuyler  Clinton  was  personally 
present;  and  when  it  appeared  that  the  agents  of  the  Lessees 
had  corrupted  or  deceived  Kirkland,  the  gospel  minister 
among  the  Indians,  and  had  debauched  the  Indians  with  "  fire- 
water," Governor  Clinton  ordered  John  Livingston,  in  writ- 
ing, to  leave  within  three  hours  and  retire  to  a  distance  of 
forty  miles.03  At  this  council,  Monroe  says,  Clinton  made  an 
exhaustive  investigation.  "  It-  exposed  a  connected  scheme 
of  bribery,  threats,  intimidation,  and  deception  practised  upon 

01  Monroe's  "  Pioneer  History,"  etc.,  106. 

«2  Ibid. 

03  Ibid.,  iio-in.  But  Clinton  was -by  no  means  the  high-minded 
public  official  he  professed.  See  details  in  Chapter  IV  of  a  scandalous 
transaction  of  great  magnitude  for  which  he,  Aaron  Burr  and  other 
officials  were  responsible.  And  Clinton's  nephew  and  political  protege 
and  successor,  De  Witt  Clinton  (as  we  shall  later  note),  drew  up  and 
pushed  through  the  Legislature  the  charter  of  the  American  Fur  Com- 
pany under  cover  of  which  John  Jacob  Astor  debauched  and  swindled 
the  Indians  on  a  great  scale. 


THE    REAL    FORCES   OF   THE   REVOLUTION  III 

the  Indians."  64  Treaties  were  concluded  by  Clinton  with  the 
various  tribes  by  which  for  a  small  money  consideration  and 
slight  annuities  —  one  thousand  dollars  in  land,  and  five  hun- 
dred dollars  annuity  forever,  in  the  case  of  Onondagas  —  the 
State  of  New  York  obtained  the  principal  area  of  territory  at 
present  included  in  the  counties  of  Cayuga,  Onondaga,  Sen- 
eca, Tompkins,  Courtland,  and  parts  of  Oswego  and  Wayne. 

The  Phelps  and  Gorham  Purchase. 

At  this  point  the  Phelps  and  Gorham  purchase  developed. 
During  the  Revolution,  Oliver  Phelps  had  been  in  constant 
touch  through  business  transactions  with  Robert  Morris.  All 
of  that  area  in  New  York  State,  now  embraced  in  the  coun- 
ties of  Chautauqua,  Cattaraugus,  Erie  and  Niagara,  and  a 
large  portion  of  the  present  counties  of  Allegany,  Genesee 
and  Orleans,  were  claimed  by  Massachusetts  as  within  its 
jurisdiction  under  the  old  Plymouth  Charter.  By  a  treaty 
adopted  in  1786  between  New  York  and  Massachusetts,  the 
jurisdiction  of  the  territory  in  question  was  ceded  to  New 
York,  which,  in  turn,  ceded  to  Massachusetts  the  right  of 
buying  the  preemption  rights  to  the  soil  from  the  Indians. 

Phelps  and  Gorham  organized  a  company;  and,  on  April  i, 
1788,  secured  the  passage  of  an  act  by  the  Massachusetts  Leg- 
islature granting  them  all  rights  of  purchase  to  certain  of  the 
lands  the  preemption  rights  of  which  had  been  ceded  by  New 
York.05  The  stipulated  price  to  be  paid  was  one  hundred 
thousand  dollars  payable  in  the  public  paper  of  Massachu- 
setts; the  value  of  this  currency  was  then  only  fifty  cents  on 
the  dollar.  But  Phelps  and  Gorham  immediately  encountered 
a  most  serious  obstacle  in  the  New  York  Genesee  Land  Com- 
pany and  its  nine  hundred  and  ninety-nine  year  leases.  True, 
both  Massachusetts  and  New  York  had  declared  these  leases 
null  and  void.  But  the  Lessees,  headed  by  the  Livingstons, 

64  Ibid.,  112. 

65  "  Massachusetts  Special  Laws,  1780-1805,"  Vol.  I:  204. 


112  HISTORY  OF  THE   SUPREME   COURT 

and  backed  by  John  Jay  and  other  powerful  relatives  and 
associates,  were  men  of  the  greatest  political  and  social  in- 
fluence; they  had  their  members  in  the  Legislature,  on  the 
Bench,  and  in  other  high  positions ;  they  were  not  to  be  trifled 
with,  or  set  aside,  which  fact  they  soon  and  most  energetically 
made  known.  The  two  companies  came  to  an  understanding; 
Phelps  held  a  meeting  with  some  of  the  principal  Lessees,  and 
made  them  stockholders  in  the  Phelps  and  Gorham  Company. 

They  Get  2,600,000  Acres. 

This  amiable  compact  arranged,  the  next  step  was  a  treaty 
with  the  Seneca  Indians  at  Kandesega  —  now  the  city  of 
Geneva.  The  Lessees  were  represented  by  John  Livingston; 
Phelps  acted  for  his  company.  By  this  treaty  the  Indians 
ceded  in  one.  deed  alone  a  tract  of  at  least  2,600,000  acres 
in  return  for  a  promised  payment  of  $10,000,  and  the  pact 
of  an  annuity  of  $500  forever.  Evidently,  Livingston  and 
his  fellow  Lessees  were  still  making  threats  against  the 
Phelps  and  Gorham  company,  and  demands  upon  it;  Mon- 
roe tells  that  another  compromise  was  made  with  the  Lessees, 
stipulating  the  conveyance  to  them  of  four  townships,  "  be- 
sides as  may  be  well  inferred,  paying  their  immediate  agents 
well  for  a  forbearance  in  the  work  of  mischief  in  which  they 
were  so  persevering."  66 

In  1789,  however,  Phelps  and  Gorham  found  themselves 
under  the  painful  prospect  of  having  to  hand  over  the  $100,- 
ooo  (which  they  had  agreed  to  pay  Massachusetts)  in  cur- 
rency the  value  of  which  had  greatly  increased.  When  they 
had  signed  the  contract  with  Massachusetts,  the  paper  of  that 
State,  as  we  have  said,  was  rated  at  only  one  half  of  its  face 
value.  They  had  confidently  expected  to  pay  their  obligations 
in  this  depreciated  currency.  But  after  the  adoption  of  the 
Constitution  of  the  United  States,  the  value  of  that  paper 

66  "  History  of  the  Phelps  and  Gorham  Purchase,"  140. 


THE    REAL   FORCES   OF   THE    REVOLUTION  113 

went  up  to  nearly  par.  What  was  to  be  done  ?  A  very  facile 
way  out  of  the  difficulty  was  found;  the  Legislature  gener- 
ously released  them  from  all  obligations  except  what  was  in- 
cluded in  the  particular  Seneca  Indian  treaty  which  had  given 
them  2,600,000  acres  of  land. 

At  an  Indian  Council,  held  at  Tioga,  in  November,  1790, 
Red  Jacket  and  Farmer's  Brother,  two  Seneca  Chiefs,  made 
pathetic  speeches,  saying  that  they  had  been  confused  and 
cheated  by  Livingston,  Phelps  and  their  partners;  that  they 
had  received  only  $5,000  instead  of  $10,000  from  Phelps. 
"  When  we  discovered  the  fraud,"  said  Red  Jacket,  "  we  had 
a  mind  to  apply  to  Congress  to  see  if  the  fraud  could  not  be 
rectified.  For  when  we  took  the  money  and  shared  it,  every 
one  knows  that  we  had  but  one  dollar  apiece.  All  our  lands 
came  to  was  the  worth  of  a  few  hogsheads  of  tobacco  .  .  . 
so  that  when  we  returned  home  there  was  not  a  bright  spot  of 
silver  about  us."  67 

Monroe  narrates  that  in  these  Indian  treaties  the  use  of  brib- 
ery and  spirituous  liquors  was  common,  and  the  consequent 
frauds  on  them  often  impelled  the  Indians  "  to  the  fields  of 
blood  and  slaughter  or  to  the  stealthy  assault  with  the  tom- 
ahawk and  scalping  knife."  Further,  Monroe  describes  how 
the  Indians  were  pauperized  to  such  an  extent  that  they  had 
to  eat  their  own  horses. 

But  what  of  Phelps  and  Gorham?  In  1795,  Phelps  "re- 
garded himself  as  worth  a  million  of  dollars  "  and  Gorham 
was  likewise  a  man  of  great  wealth.  These  were  not  their 
only  land  transactions;  they  even,  in  1789,  made  a  claim  to 
certain  parts  of  the  northwest  corner  of  Pennsylvania,  as 
coming  within  the  lines  of  their  purchase,  or  conflicting  with 
them.08  Phelps  was,  at  the  same  time,  a  conspicuous  political 
leader  in  Congress.  His  land  speculations  became  so  vast, 

07  Ibid.,  pp.  143-144. 

08  See  "  American  State  Papers :  Public  Lands,"  Vol.  1 :  7-8.     Peti- 
tion of  Phelps  and  Gorham,  and  Report  of  House  Committee  on  Public 
Lands  recommending  that  the  boundaries  of  the  cession  be  ascertained. 


114  HISTORY   OF   THE    SUPREME    COURT 

that  he  had  to  execute  mortgages  on  his  New  York  lands  to 
the  State  of  Connecticut  from  which,  in  his  reverses,  he  was 
easily  able  to  borrow  money. 

Morris  Gets  Four  Million  Acres  in  New  York. 

Of  the  preemption  rights  ceded  by  New  York  to  Massachu- 
setts there  still  remained  several  million  acres  which  had  not 
been  included  in  the  sale  to  Phelps  and  Gorham.  On  March 
5  and  8,  1791,  the  Massachusetts  Legislature  accommodatingly 
sold  the  rights  of  preemption  to  these  lands  to  Samuel  Ogden, 
who,  two  months  later,  on  May  II,  1791,  assigned  his  con- 
tract to  Robert  Morris.89  Shortly  afterward,  Morris,  then  a 
United  States  Senator  from  Pennsylvania,  made  a  fraudulent 
treaty  with  the  Seneca  Indians,  similar  to  the  treaties  of  Liv- 
ingston and  Phelps,  but  accompanied  by  an  agreement  more 
favorable  to  the  Senecas  —  an  agreement  by  which  they  were 
to  receive  the  payment  of  $100,000.™  By  this  treaty  Morris 
acquired  more  than  4,000,000  acres  in  New  York  west  of  the 
Phelps  and  Gorham  purchase. 

Even,  says  Monroe,  before  he  had  extinguished,  that  is  to 
say  bought,  the  rights  from  the  Indians,  Morris  sold  to  a  com- 
pany called  the  Holland  Company,  more  than  a  million  acres 
in  what  are  now  the  counties  of  Niagara,  Erie,  Chatauqua, 
and  all  of  the  present  counties  of  Allegany,  Wyoming,  Gene- 
see  and  Orleans.  To  himself  Morris  reserved  a  tract  of  about 
five  hundred  thousand  acres,  these  lands  being  between  those 
of  Phelps  and  Gorham,  and  those  conveyed  to  the  Holland 
Company.71  But,  according  to  Justice  Bushrod  Washington's 

09  History  of  The  Holland  Company,  N.  Y.  Assembly  Doc.  No.  224, 
Assembly  Documents,  Vol.  III.  (1837.) 

70  But  was  this  $100,000  paid?  It  was  not.  By  order  of  President 
Washington,  it  was  invested  in  the  Bank  of  the  United  States,  in  the 
name  of  the  President,  as  trustee  for  the  Indians.  Of  this  bank,  pro- 
moted by  Morris  and  largely  founded  by  Hamilton,  Morris'  partner, 
Thomas  Willing,  as  we  have  noted,  was  the  first  president. 

71 "  Pioneer  History  of  the  Phelps  and  Gorham  Purchase,"  442. 


THE   REAL   FORCES  OF  THE  REVOLUTION  1 15 

\  . 

statement  in  deciding  the  case  of  Fitzsimmons  and  others  vs. 
Ogden  and  others,  in  the  Supreme  Court  of  the  United  States, 
February  4,  1812,  Morris'  purchases  from  the  State  of  Massa- 
chusetts in  Ontario  County  (comprising  a  number  of  present 
New  York  counties)  "  amounted  to  upwards  of  four  million 
acres " ;  of  this  area,  said  Justice  Washington,  Morris,  by 
different  deeds,  conveyed  to  the  Holland  Company  more  than 
three  million  acres.72  It  was  part  of  his  reserved  tract  that 
Morris,  through  Alexander  Hamilton,  subsequently  conveyed 
to  John  B.  Church  and  to  Samuel  Ogden,  Sir  William  Pult- 
eney  and  others. 

John  Jay's  intimate  friend,  Herman  Le  Roy,  presently  came 
into  the  transaction. 

In  the  operations  of  the  Holland  Company  there  was  to  be 
seen  a  typical  example  of  the  full  effects  of  absentee  land- 
lordism, for  which  some  of  the  most  eminent  members  of 
the  Federal  Constitutional  Convention  were  responsible.  The 
more  than  three  million  acres  that  Morris  deeded  were  con- 
veyed on  July  20,  1793,  ostensibly  to  Herman  Le  Roy  (the 
same  who  obtained  large  areas  that  had  been  procured  by 
fraud  as  described  in  Chapter  I),  John  Linclaen  and  Gerrit 
Boon.  But  this  conveyance  was  made  to  divert  the  attention 
of  the  mass  of  American  people ;  the  transfer  was  actually 
made  in  trust  for  the  use  of  Wilhelm  Willinck  and  eleven 
other  Holland  capitalists,  who  paid  the  purchase  money.73 
The  firm  of  Willinck  and  Van  Strapporst  were  big  bankers 
at  Amsterdam ;  as  the  "  bankers  for  the  United  States  "  in 
Holland  they  did  a  lucrative  business  making  profits  out  of 
the  Revolution,  and  later  from  the  United  States,  by  grace 
of  Robert  Morris,  and  by  that  of  Alexander  Hamilton,  as 
Secretary  of  the  Treasury.  The  Willincks  later  used  these 
profits  in  taking  mortgages  on  many  American  transportation 

72  VII  Cranch,  2-22.     Thomas  Fitzsimmons,  one  of  the  plaintiffs  in 
this  suit,  was  one  of  the  Pennsylvania  delegates  in  the  Federal   Con- 
stitutional Convention. 

73  N.  Y.  Assembly  Doc.  No.  224,  1837 :  13- 


Il6  HISTORY   OF   THE    SUPREME    COURT 

lines.74  Because  of  its  being  a  company  of  Holland  capitalists, 
it  called  itself  the  Holland  Company. 

In  order  to  give  a  clear  idea  of  the  interconnected  inter- 
ests of  Le  Roy,  Jay,  Hamilton,  Morris,  the  Willincks  and 
other  politicians  and  capitalists  of  the  time,  we  shall  at  this 
point  again  call  attention  to  certain  facts  brought  out  in  a  let- 
ter written  by  Jay  from  which  communication  extracts  are 
givert  in  Chapter  V  of  this  work.  When  he  wrote  that  letter 
Jay  had  not  yet  formally  resigned  as  Chief  Justice  of  the  Su- 
preme Court  of  the  United  States.  In  that  particular  letter 
sent  by  Jay  from  London,  in  1/94,  to  Nicholas  Cruger,  Hamil- 
ton's patron,  Jay  informed  Cruger  that  "  a  gentleman  in  Hol- 
land "  had  sent  him  (Jay)  a  plan  for  making  his  fortune. 
Jay  sent  the  "  golden  "  plan  to  Cruger,  suggesting  that  Le  Roy 
and  Bayard  participate  in  it.  This  plan,  it  would  appear,  did 
not  deal  with  land,  but  with  mercantile,  operations ;  Le  Roy 
and  Bayard  were  among  the  largest  shipping  merchants  in 
New  York;  Hamilton  was  their  attorney. 

Here,  for  the  present,  we  shall  leave  the  Holland  Company, 
to  recur  later  in  this  work  to  its  operations:  the  manner  in 
which  it  secured  fraudulent  legislation,  and  in  which  it  be- 
came possessed  of  vast  areas  of  land  in  Pennsylvania ;  how 
it  swayed  the  courts  and  cheated  States  and  settlers ;  how  its 
fraudulent  pretensions  were  validated  by  a  remarkable  de- 
cision of  the  Supreme  Court  of  the  United  States ;  and  finally 
how,  for  half  a  century,  it  bled  a  hundred  thousand  settlers 
causing  great  agitation,  uprising  and  riots. 

The  purpose  of  this  particular  chapter  is  to  give  a  sufficient 
insight  into  the  economic  interests  of  the  principal  men  who 
drafted  the  Constitution  of  the  United  States,  and  those  of 
their  associates  and  connections.  Abundant  as  the  facts  here 
related  may  seem,  they  are  supplemented  by  as  great  and  as 

74  See,  for  example,  the  case,  in  1843,  of  William  Willinck,  Jr.,  vs. 
the  Morris  Canal  and  Banking  Company,  involving  litigation  growing 
out  of  a  loan  of  $750,000 — N.  J.  Chancery  Reports,  Vol.  Ill:  377. 


THE   REAL   FORCES   OF   THE   REVOLUTION  117 

indispensable  an  array  in  the'  following  pages,  in  which  their 
importance  to  the  narrative  of  the  Supreme  Court  of  the 
United  States  will  be  more  evident.  There  it  will  be  further 
seen  how  Washington,  Hamilton,  James  Wilson,  Robert  Mor- 
ris, Gouverneur  Morris,  the  Carrolls,  Samuel  Chase,  John 
Jay,  Thomas  Fitzsimmons,  Thomas  Mifflin  and  other  notables 
who  either  directly  or  indirectly  caused  the  adoption  of  the 
Constitution,  and  some  of  whom  formed  the  first  bench  of 
the.  Supreme  Court,  were  abetting  or  putting  through  great 
fraudulent  undertakings. 

A  succinct  account,  however,  of  one  or  two  more  notable 
transactions  begun  during  the  very  time  that  the  Constitu- 
tion was  being  formulated,  will  be  appropriate  at  this  point* 

Revolutionary  Veterans  Defrauded. 

At  the  beginning  of  the  Revolution,  the  old  Roman  plan 
used  by  Governor  Dinwiddie  in  the  French  and  Indian  war 
of  giving  land  for  military  services,  was  taken  up  by  the  colo- 
nies as  a  means  of  inducing  recruits,  and  paying  them  for 
their  services.  According  to  rank  and  service,  each  soldier 
was  entitled  to  a  specified  area  of  land. 

Knowing  the  collective  value  of  large  assignments  of  these 
military  certificates,  the  speculators  sent  out  their  agents  to 
trade  upon  the  pressing  need  of  the  soldiers  for  money,  and 
buy  up  these  land  warrants  issued  by  the  various  colonies. 
Congress,  at  the  instance  of  Morris,  Hamilton  and  others 
passed  an  act  providing  for  the  assumption  of  State  debts. 

Of  this  fact  the  people  at  large  were  in  ignorance  for  some 
considerable  time;  there  was  only  one  post  road  extending 
along  the  seacoast,  and  communication  was  slow.  "  But  the 
rich  speculator,  who  was  on  the  spot,"  explained  Representa- 
tive Bacon,  in  the  debate  on  the  judiciary  system,  in  the  House 
of  Representatives,  on  February  19,  1802,  "  by  going  into  the 
country  where  the  people  had  been  ignorant  of  what  had  been 
done,  purchased  up  their  certificates  —  the  only  reward  they 


Il8  HISTORY   OF   THE    SUPREME    COURT 

had  received  for  their  toil  and  wounds  —  at  about  one-tenth 
of  their  value.  And  it  is  possible  that  many  of  these  pur- 
chases may  have  been  done  with  public  money."  75 

Jefferson  says  the  same.  "  The  accounts,"  he  wrote,  "  of 
the  soldiers  of  Virginia  and  North  Carolina,  having  been  ex- 
amined by  the  proper  officers  of  government,  the  balances  due 
each  individual  ascertained,  and  a  list  of  the  balances  made 
out,  this  list  became  known  to  certain  persons  before  the  sol- 
diers themselves  had  information  of  it,  and  these  persons, 
by  unfair  means,  as  is  said,  and  for  very  inadequate  considera- 
tions, obtained  assignments  from  many  of  the  soldiers  of  what- 
ever sum  $hotild  be  due  to  them  from  the  public,  without 
specifying  the  amount."  76  A  law  was  enacted  to  protect  the 
soldiers  but  it  was  of  no  effect. 

Jefferson's  statements  are  borne  out  by  the  actual  records. 
Great  numbers  of  military  land  warrants  were  bought  by 
speculators  for  paltry  sums.  To  instance  one  example  of 
thousand  of  cases : 

Waller,  a  veteran  of  the  Revolution,  had  obtained  warrants 
for  about  5,000  acres  "  which  had  been  unfairly  purchased 
from  him  .  .  .  for  the  trifling  consideration  of  £20,  at 
a  time  when  the  testator  was  intoxicated  with  liquor,  and  in- 
capable of  contracting."  The  Chancellor  of  Virginia  decided 
that  the  fraud  had  been  proved  to  his  satisfaction,  and  gave 
judgment  for  Waller's  heir.  The  Virginia  Court  of  Appeals 
in  sustaining  the  Chancellor's  decision  said  that  "  a  more  pal- 
pable imposition  was  never  practised,  or  better  established  than 
in  this  case."  "  Redress  was  awarded  in  this  particular  case, 
but  in  large  numbers  of  other  cases  the  soldiers  were  abso- 
lutely defrauded.  In  other  instances  —  and  by  no  means  a 
small  number  —  assignments  of  military  land  warrants  pur- 
porting to  have  been  conveyed  by  soldiers  were  forged.  Pe- 
tition after  petition  went  into  Congress,  for  more  than  thirty 

76  "  Abridgement  of  the  Debates  of  Congress,"  Vol.  II:  629. 
70 "The  Writings  of  Thomas  Jefferson,"  Vol.  V:  175. 
"  Washington's  Virginia  Reports,  Vol.  1 :  164. 


THE   REAL   FORCES   OF   THE   REVOLUTION  I IQ 

years  after  the  Revolution,  from  veterans  who  asserted  that 
they  had  been  defrauded  or  their  names  forged.78 

It  was,  to  a  very  great  extent,  by  means  of  these  military 
land  certificates,  thus  obtained,  that  many  of  the  most  eminent 
politicians  secured  large  tracts  of  land.  The  raids  began  in 
1787  when  the  Continental  Congress  and  the  Executive  De- 
partments were  wholly  under  the  control  of  the  Livingstons, 
the  Carrolls,  John  Jay,  Robert  Morris  and  other  Revolu- 
tionary eminences.  Begun  in  the  very  year  in  which  the  Con- 
stitution was  drafted,  these  schemes  were  projected  and  car- 
ried out  either  by  members  of  the  Federal  Constitutional  Con- 
vention, or  by  their  associates. 

Symmes,  Dayton,  Etc.,  Get  a  Slice  of  Ohio. 

On  October  15,  1788,  by  virtue  of  resolutions  adopted  in 
July  and  October,  1787,  the  Board  of  Treasury  contracted 
with  Judge  John  Cleves  Symmes  and  Jonathan  Dayton,  of 
New  Jersey,  and  other  associates,  to  grant  them  a  tract  of 
1,000,000  acres  in  Ohio,  the  Government  reserving  five  lots 
out  of  each  township.  Dayton  was  a  delegate  to  the  Federal 
Constitutional  Convention  from  New  Jersey,  and  was  not 
only  a  partner  of  Symmes,  but  also  his  agent;  the  city  of 
Dayton,  Ohio,  derives  its  name  from  him.  Who  the  other 
associates  were  the  documents  do  not  state.  For  this  tract 
Symmes  and  company  agreed  to  pay  the  Government  at  the 
rate  of  66  2-3  cents  an  acre. 

Of  this  specified  amount  they  paid  into  the  Treasury,  be- 
fore the  ensealing  of  the  contract,  the  sum  of  $82,198.  This 
was  not  paid  in  coin.  One-seventh  was  paid  in  military  land 
warrants,  and  the  remainder  in  Government  securities 79 
which  had  been  bought  speculatively  at  a  heavy  discount  be- 

78  See,  "American  State  Papers:  Public  Lands,"  Vol.  I:  17-18,  no- 
iii,  127,  597  and  911 ;  Vol.  II:  140-156,  etc.,  etc. 

79 "American  State  Papers:  Public  Lands,"  Vol.  I:  104-106.  (Doc. 
No.  55.) 


I2O  HISTORY   OF   THE    SUPREME    COURT 

cause  of  their  low  price.  The  remainder  of  the  sums  due  the 
Government  were  to  be  paid  as  follows :  The  amount  of 
$82,198  within  a  month  after  the  delivery  of  patents,  and  the 
residue  in  six  equal  payments,  with  interest,  payments  ex- 
tending through  three  years.  It  was  agreed  that  one-seventh 
of  those  payments  could  be  made  in  military  certificates,  acre 
for  acre  ;80  to  this  extent  Symmes  and  Dayton  were  accord- 
ingly relieved  from  the  necessity  of  having  to  pay  in  gold  or 
silver.  The  tract  covenanted  for  embraced  all  that  rich  sec- 
tion in  the  southern  part  of  Ohio,  now  occupied  by  Cincin- 
nati, Dayton,  Hamilton  and  other  cities  and  towns. 

Sold  the  Site  of  Cincinnati  Before  They  Had  a  Patent. 

It  appears  that,  extraordinarily  favorable  to  them  as  was 
this  contract,  Symmes  and  Dayton  at  once  commenced  fraudu- 
lent operations.  They  were  in  collusion  with  Daniel  Ludlow, 
the  Government  Surveyor, 81  Governor  St.  Clair  and  other 
officials.  Although  they  received  no  patent  from  the  Gov- 
ernment until  1794,  they  began  selling  land  in  1788.  In  the 
case  of  The  City  of  Cincinnati  vs.  The  Lessee  of  White,83 
before  the  United  States  Supreme  Court,  in  January,  1832, 
Justice  Thompson,  in  delivering  the  Court's  opinion,  stated 
these  facts : 

"  Before  the  issuing  of  the  patent,  however,  and,  as  the 
witnesses  say,  in  the  year  1788,  Matthias  Denman  (of  New 
Jersey)  purchased  of  Symmes  a  part  of  the  tract  included 

80  Ibid.     But  Hamilton,  as  Secretary  of  the  Treasury,  made  a  settle- 
ment with  Symmes,  Dayton,  etc.,  by  which  they  obtained  an  acre  and  a 
half  for  every  acre  of  military  land  warrants  that  they  turned  in. 

81  Ibid.,   128-130.     Dayton,  Ludlow,   St.   Clair  and  others,   separately 
and  together,  made  extensive  purchases  of  land  in  what  is  now  the  town 
of    Dayton   and    elsewhere.     Ludlow   became    a    rich    landholder.     See 
case  of  Ludlow  vs.  Carpenter,  Ohio  Reports,  Vol.  XIII:   580;   Chief 
Justice  Lane's  statement  of  facts.     For  the  facts  revealing  other  great 
land  frauds  accomplished  under  Governor  St.  Clair  and  with  his  con- 
nivance, see  later  in  this  work. 

&2  Peters'  Reports,  Supreme  Court  of  the  U.  S.,  Vol.  VI :  431-434. 


THE    REAL   FORCES   OF   THE   REVOLUTION  121 

in  the  patent,  and  embracing  the  land  whereon  Cincinnati  now 
stands.  That,  in  the  same  year,  Denman  sold  one-third  of 
his  purchase  to  Israel  Ludlow,  and  one-third  to  Robert  Pat- 
terson. These  three  persons,  being  equitable  owners  of  the 
land  (no  legal  title  having  been  granted)  proceeded  in  Janu- 
ary, 1789,  to  lay  out  the  town.  A  plan  was  made  and  ap- 
proved of  all  the  proprietors,"  etc.83 

Justice  Thompson's  statement  went  on  to  say  that  in  March, 
1795,  Denman  conveyed  his  interest,  which  was  only  an 
equitable  interest,  to  Joel  Williams,  and  that,  on  February 
14,  1800,  Symmes  conveyed  in  fee  to  Williams  certain  lands 
described  in  the  deed,  some  of  which  lands  Williams  con- 
veyed to  John  Daily.  Williams  was  a  tavern-keeper ;  and, 
it  may  be  parenthetically  remarked,  it  was  from  him,  in  ex- 
change for  some  secondhand  copper  stills,  that  Nicholas 
Longworth  obtained  thirty-three  acres  now  in  the  heart  of 
Cincinnati,  thus  laying  the  foundation  of  the  immense  Long- 
worth  fortune  of  to-day,  a  fortune  in  which  Alice  Roosevelt 
Longworth,  a  daughter  of  Theodore  Roosevelt,  shares  by 
marriage  with  the  present  Nicholas  Longworth. 

The  Government  Cheated. 

To  return  to  Symmes:  On  April  n,  1792,' he,  Dayton  and 
his  associates  petitioned  Congress  that  the  advanced  price 
of  public  securities  rendered  impossible  the  strict  fulfillment 
of  the  contract,  and  asked  for  a  modification  and  more  favor- 
able terms. 

Congress  was  compliant ;  many  of  its  members  held  interest 
in  the  Symmes  grant.  In  fact,  Dayton,  as  a  member  of  the 
House  of  Representatives,  not  only  presented  the  petition,  but 
he,  Treadwell,  and  Nicholas  Oilman  (the  last-named  was  one 
of  the  four  delegates  to  the  Federal  Constitutional  Conven- 
tion of  1787  from  New  Hampshire)  were  appointed  on  April 

ss  ibid.,  433. 


122  HISTORY   OF   THE   SUPREME    COURT 

23,  1792,  a  House  Committee  to  prepare  and  bring  in  a  bill 
granting  certain  lands  to  Symmes,  which  bill  was  reported  as 
passed.84  This  law,  enacted  on  May  5,  1792,  authorized  Presi- 
dent Washington  to  grant  to  the  company  in  fee  simple: 

i.  As  much  lands  as  had  been  paid  for  (under  the  Symmes 
contract  of  October  15,  1788)  at  the  rate  of  66  2-3  cents  an 
acre.  2.  Another  tract  of  106,850  acres,  provided  it  was  paid 
for  in  six  months  in  military  bounty  certificates.  3.  A  town- 
ship of  six  miles  square  to  contain  23,040  acres  and  to  be 
held  in  trust  for  the  use  of  an  academy.  In  conformity  with 
this  act,  Washington,  on  September  30,  1794,  gave  Symmes 
and  company  a  patent  for  311,682  acres  of  land  along  the 
Ohio,  and  the  Great  Miami  and  Little  Miami  rivers,  reserving 
five  lots  in  each  township,  and  one  complete  township  of  six 
miles  square  (to  be  located  in  about  the  center  of  the  tract) 
for  use  of  an  academy.85  But  Symmes  and  Dayton  fraudu- 
lently sold  part  of  this  reserved  township  to  various  individ- 
uals, causing  a  prolonged  scandal.88 

Land  Companies  Swindle  Settlers. 

At  the  same  time,  in  1787,  when  Symmes,  D.iyton  and  as- 
sociates had  made  their  first  move,  other  land  companies  ob- 
tained great  grants  of  land.  On  October  29,  1787,  Manasseh 
Cutler,  Winthrop  Sargent,  and  associates,  composing  the  Ohio 
Company,  made  an  agreement  with  William  Duer  and  asso- 
ciates, by  which  in  return  for  a  tract  of  100,000  seres  of 

84 "  History  of  Congress,  March  4,  1789,  to  March  7,  1793,''  etc.,  p. 
425.  See  details  in  Chapter  IV  of  this  present  work  as  to  the  bribery 
of  members  of  Congress  in  another  land-grasping  scheme. 

85  "  American  State  Papers :  Public  Lands,"  Vol.  1 :   104-106.     Later 
reports  say  248,540  acres. 

86  Ibid.,  105.     See  also  Report  of  House  Committee  on  Public  Lands, 
March  21,  1836,  reciting  the  full  circumstances,  and  reporting  in  part : 
"  Symmes   failed  to   execute  the  trust  thus   reposed   in   him,   and   the 
object  of  the  conveyance  of  said  township    [was]    entirely  defeated." 
The  report  was  called  forth  by  the  application  of  the  Woodward  High 
School,  of  Cincinnati,  for  a  grant  of  land. —  Ibid.,  Vol.  VIII :  561.     ^.Doc. 
No.  1478.) 


THE   REAL   FORCES   OF   THE   REVOLUTION  123 

land,  Duer  and  company  were  to  allow  Cutler,  Sargent  and 
company  to  have  a  share  in  the  profit  from  the  sales  to  Eu- 
ropean capitalists  and  immigrants  of  their  lands ;  and,  for  the 
purpose  of  aiding  the  sale,  a  company  called  the  Scioto  was 
formed,  to  which  the  lands  were  conveyed. 

By  the  act  of  April  21,  1792,  the  President  was  authorized 
to  issue  to  the  Ohio  Company  of  Associates  patents  for  750,- 
ooo  acres  of  land ;  in  addition,  several  other  tracts  within 
certain  described  boundaries  in  Ohio,  were  included.  The 
same  act  also  authorized  the  President  to  issue  to  the  Ohio 
Company  patents  for  an  additional  area  of  214,285  acres,  for 
which  the  company  was  required  to  pay  in  six  months  in 
"  warrants  issued  for  army  bounty  rights " ;  and  a  further 
quantity  of  100,000  acres  was  to  be  patented  to  the  Ohio  Com- 
pany in  certain  prescribed  conditions. 

It  appears  conclusive  that  Symmes,  Dayton,  Cutler,  Sargent, 
Duer  and  associates  in  the  various  companies  carried  on  the 
most  extensive  swindles.  Notwithstanding  the  fact  that  the 
Symmes-Dayton  company  had  paid  for  only  a  part  of  the 
lands  in  the  contract,  and  although  Congress  had  modified 
the  contract  in  their  favor,  they  insisted  that  they  were  en- 
titled to  the  original  quantity  of  a  million  acres  and  were  not 
bound  to  make  any  further  payment  until  they  received  it. 
Acting  upon  this  pretense  they  sold  large  areas,  not  included 
in  their  patent,  to  settlers.87  When  the  Government  later 
offered  this  same  land  to  the  settlers  at  $2  per  acre,  the  set- 
tlers protested  that  they  had  already  paid  Symmes.  And  it 
also  seems  that  when  Symmes  sold  them  the  lands,  he  de- 
liberately so  altered  the  contracts  that  he  left  their  lands  out 
of  the  area  patented  to  him.88  The  settlers  were  thus  left 
with  bad  titles,  and  found  themselves  in  conflict  with  the  Gov- 
ernment which  had  come  to  their  rescue. 

The  Scioto  Company  sold  considerable  of  their  Ohio  land 

87  "  American  State  Papers :  Public  Lands,"  Vol.  1 :  106. 

88  Ibid.,  112.     (Doc.  No.  62.) 


124  HISTORY   OF   THE   SUPREME   COURT 

to  companies  and  individuals  in  France.  The  Ohio  Company 
and  the  Scioto  fell  to  quarreling  over  the  question  as  to  which 
held  the  title  to  the  land  sold  to  French  settlers,  at  Galliopolis, 
Ohio.  The  consequence  of  this  fight  for  the  spoils  was  that 
the  settlers  found  themselves  with  bad  titles ;  after  paying 
for  their  l^jjds  they  discovered  that  there  was  no  legal  bar 
to  their  dispossession.  In  a  pathetic  petition  to  Congress,  they 
expressed  their  regret  at  not  being  able  to  prosecute  the 
"  authors  of  their  misery,"  and  solicited  a  grant  of  land  else- 
where. Reporting  on  the  whole  transaction,  on  March  27, 
1794,  U.  S.  Attorney-General  William  Bradford  concluded 
by  saying  that  if  the  settlers  sued,  each  had  to  bring  a  separate 
suit,  and  he  spoke  of  the  French  settlers  as  "  almost  ex- 
hausted by  the  many  disappointments  and  difficulties  which 
they  have  had  to  struggle  with  for  the  space  of  three  years."  89 

Gallatin,  Secretary  of  the  Treasury,  reported  to  Congress, 
in  1812,  that  the  amount  of  land  actually  sold  to  the  Ohio 
Company,  in  1792,  was  964,285  acres  and  the  extent  actually 
patented  to  Symmes  was  248,540  acres.90  Altogether,  11,046 
military  land  warrants  had  been  issued,  covering  a  total  of 
1,562,250  acres;  and  of  these  11,046  warrants,  reported 
George  Graham,  Commissioner  of  the  General  Land  Office, 
"  the  number  of  warrants  located  and  not  patented,  and  those 
surrendered  by  the  Ohio  Company  and  J.  C.  Symmes  amounted 
to  10,928  warrants  for  1,528,950  acres  of  land."  91  It  is  thus 
established  that  a  large  proportion  of  the  military  land  war- 
rants issued  to  the  soldiers  of  the  Revolution,  came  into  the 
possession  of  two  cliques  of  politician  speculators  who,  on 
the  strength  of  them,  obtained  nearly  a  million  and  a  quarter 
acres  of  some  of  the  finest  lands  in  Ohio,  including  the  sites 
of  many  present  large  cities. 

The  reader  may  be  astonished  that  such  enormities  as  these 
were  committed  at  the  very  beginning  of  the  Government,  but 

89  "  American  State  Papers :  Public  Lands,  Vol.  I,  29-30. 
»»Ibid.,  Vol.  II:  442.  »*  Ibid.,  Vol.  IV:  471. 


THE   REAL   FORCES   OF   THE   REVOLUTION  125 

we  are  simply  giving  the  facts  as  they  appear  in  the  records. 

Jonathan  Dayton  and  His  Speculations. 

Even  while  officiating  as  Speaker  of  the  House  of  Repre- 
sentatives, Jonathan  Dayton  was  industriously  buying  in, 
through  brokers,  batches  of  military  certificates. 

Getting  into  a  quarrel  with  his  partners,  the  mercantile  firm 
of  Lawrence,  Dayton  and  Company  of  New  York  City,  over 
the  profits  of  land  warrants  transactions,  Dayton,  joined  by 
Lawrence,  sued  Childs,  another  member  of  the  firm.  The  suit 
came  up  before  Chancellor  Livingston,  in  New  York,  in  1800. 
Childs  alleged  that  the  speculation  in  land  warrants  was  a 
project  and  contrivance  of  Dayton  while  he  was  Speaker  of  the 
House,  and  produced  sixteen  letters  Dayton  had  written  to  him.92 

In  one  letter  Dayton  wrote  to  Childs  that  "  a  large  company 
is  forming  itself  here,  for  the  purchase  of  the  United 
States  lands,  and  part  of  their  capital  is  to  be  2,000  military 
land  warrants.  .  .  ."  On  January  27,  1796,  Dayton 
wrote,  asking  for  the  employment  of  some  broker  to  inquire 
as  to  the  terms  for  the  purchase  of  two  hundred  land  warrants, 
which,  he  had  directly  heard,  were  selling  at  $75  per  hun- 
dred acres.  "  Don't  mention  my  name  to  the  broker,"  Day- 
ton warned  Childs.  The  committee  in  Congress,  Dayton 
added,  had  reported  a  bill  for  the  sale  of  lands,  at  $2  an  acre, 
in  the  Northwest  Territory,  and  it  had  agreed  to  accept  mili- 
tary warrants.  From  time  to  time  Dayton  kept  Childs  fully 
informed  as  to  the  legislation  being  brewed  in  Congress,  and 
he  arranged  with  Childs  for  the  purchase  of  army  land  war- 
rants. Dayton  concluded  his  letter  of  April  17,  1796,  "  The 
contents  of  this  letter  are  of  such  a  nature  as  to  render  it 
improper  to  be  seen  by  any  except  yourself;  burn  it,  there- 
fore, when  you  have  perused  it."  There  were  many  other  such 

92  These  letters  are  to  be  found  in  full  in  John  Wood's  "  Suppressed 
History  of  the  Administration  of  John  Adams  (From  1797  to  1801). 
As  Printed  and  Suppressed  in  1802,  And  Republished  in  1846." 


126  HISTORY  OF  THE   SUPREME   COURT 

letters.83  Dayton  later  withdrew  his  suit  against  Childs,  pay- 
ing full  costs. 

In  a  single  month,  March,  1800,  Dayton  secured  in  his 
own  name  15,553  acres  of  land  in  exchange  for  five  military 
land  warrants,  and  Nicholas  Oilman  was  likewise  getting  land 
for  military  certificates.94 

Evidently  John  Wood  did  not  exaggerate  when  he  wrote, 
in  1802,  that  Dayton,  the  late  speaker  of  Congress  "  is  no- 
torious from  Boston  to  Georgia.  The  deeds  of  other  members 
of  Congress  were  scarcely  known  beyond  the  circle  of  their 
respective  States,  but  the  speculations  of  this  man  have  rung 
through  the  western  world."  °5 

But  Dayton's  actions  were  far  from  being  exceptional ;  that 
he  was  chosen  speaker  is  a  sufficient  commentary  upon  the 
character  of  the  majority  electing  him.  The  Senate  also  was 
ruled  by  such  men  as  Robert  Morris,  Charles  Carroll,  Oliver 
Ellsworth,  James  Gunn,  Gallatin,  Sedgwick,  Hillhouse  and 
others  who  had  voted  for  Hamilton's  refunding  plan  after 
some  had  themselves  made  considerable  purchases  in  the  cer- 
tificates of  the  Revolutionary  army. 

Nearly  all  of  these  men  were  at  the  same  time  manipulating 
State  Legislatures  to  grant  them  great  areas  of  land,  bank 
charters,  and  charters  for  canal,  bridge  and  turnpike  com- 
panies. Thus,  Charles  Carroll  was  one  of  the  incorporators 
of  the  "  Proprietors  of  the  Susequehanna  Canal  "  chartered 
with  a  capital  of  £18,500  (current  money  of  Maryland),  in 
1784,  by  the  Maryland  Legislature.96  Gallatin  had  got  a  large 
area  of  land  in  Virginia;  Morris  was  becoming  a  colossal 
landholder,  and  of  the  corrupt  land  transactions  of  Gunn  and 
others  we  shall  have  more  to  say  hereafter. 

03  "  Suppressed  History  of  the  Administration  of  John  Adams,"  152^ 
158. 

94  "American  State  Papers:  Public  Lands,"  Vol.  I:  118.     (Report  of 
Joseph  Nourse,  Register  of  the  Treasury  Department.) 

95  "  Suppressed  History  of  the  Administration  of  John  Adams,"  etc., 
145. 

06  "  Laws  of  Maryland,  1682-1784,"  Vol.  I,  Chap.  23. 


THE   REAL   FORCES   OF   THE    REVOLUTION  127 

^ 

Protests  Against  Land  Grabbing. 

The  origin  of  the  huge  grants  made  to  Symmes,  Dayton, 
and  the  Ohio  Company  and  all  of  their  associates,  both  open 
and  in  the  background,  dated,  as  we  have  said,  from  1787. 
The  protest  against  giving  millions  of  acres  of  the  public 
domain  to  an  unprincipled  band  of  speculators  soon,  but  im- 
potently,  made  itself  heard  in  Congress.  The  spoliation  going 
on  could  not  be  deterred  by  mere  protests. 

In  the  debates  in  May,  1789,  on  Western  lands,  and  the  es- 
tablishment of  a  Land  Office,  Representative  Scott  advanced 
the  principle  that  the  land  ought  to  be  sold  in  small  quanti- 
ties. "  There  are  at  this  moment,"  he  said,  on  May  28,  1789, 
"  a  great  number  of  people  on  the  ground  who  are  willing 
to  acquire  by  purchase  a  right  to  the  land  they  are  seated 
on."  In  Kentucky,  hundreds  of  thousands  of  acres  had  been 
already  granted  to  a  few  absentee  landlords.  Kentucky  was 
full,  said  Scott ;  at  least  there  were  no  more  valuable  lands 
to  be  got  there  with  a  clear  title,  and,  therefore,  no  more  settlers 
could  be  received.  "They  hope,"  went  on  Scott,  referring  to 
the  settlers,  "  to  get  them  [the  lands]  upon  as  good  terms  as 
they  can  procure  them  of  the  speculators.  What  will  these 
men  think  who  have  placed  themselves  upon  a  vacant  spot 
anxiously  awaiting  its  disposition  by  the  Government,  to  find 
their  preemption  rights  engrossed  by  the  purchaser  of  a  mil- 
lion acres?  Will  they  expose  themselves  to  be  preyed  upon 
by  these  men  ?  "  Seven  thousand  souls,  Representative  Scott 
continued,  were  there  waiting  for  lands ;  troops  sent  under 
General  Harmer  had  driven  out  these  squatting  settlers,  had 
burnt  their  cabins  and  had  torn  up  their  potato  patches ;  but 
three  hours  after  the  troops  had  gone,  the  people  returned,  re- 
paired the  damage,  and  settled  upon  the  land  in  defiance  of  the 
Government.97  On  July  13,  1789,  Scott  pointed  out  that  the 
western  territory  (meaning  east  of  Mississippi)  could  con- 

07  "  Abridgement  of  the  Debates  of  Congress,"  Vol.  1 :  99-100. 


128  HISTORY   OF   THE    SUPREME   COURT 

tain  2,000,000  farms,  or  at  least  1,000,000,  and  that  6,000,000 
people  could  live  in  comfort  there.08 

Hamilton  Plans  Further  Big  Land  Seizures.- 

Popular  protests,  however,  counted  for  nothing.  The  very 
next  year,  on  July  20,  1790,  Alexander  Hamilton,  as  Secretary 
of  the  Treasury,  submitted  to  Congress  a  plan  for  disposing  of 
the  public  lands.  These  lands  were  the  enormous  area  owned 
by  the  National  Government.  Part  of  the  large  areas  orig- 
inally owned  by  certain  of  the  original  States  were  still  under 
the  complete  jurisdiction  of  those  States.  Hamilton's  plan 
fully  revealed  the  nature  of  further  schemes  under  way  on 
the  part  of  leading  capitalist  politicians  to  appropriate  the 
public  domain,  both  that  owned  by  the  Federal  Government 
and  that  by  the  States. 

"  Purchasers,"  reported  Hamilton,  "  may  be  contemplated 
in  three  classes :  moneyed  individuals  and  companies,  who  will 
buy  to  sell  again ;  associations  of  persons  who  intend  to  make 
settlements  themselves ;  single  persons,  or  families  now  resi- 
dent in  the  Western  country,  or  who  may  be  emigrants  thither 
thereafter.  The  two  first  will  be  frequently  blended,  and  will 
always  want  considerable  tracts.  The  last  will  generally  pur- 
chase in  small  quantities.  Hence,  a  plan  for  the  sale  of  the 
Western  lands,  while  it  may  have  due  regard  to  the  last,  should 
be  calculated  to  obtain  all  of  the  advantages  which  may  be  de- 
rived from  the  first  two  classes.  For  this  reason,  it  seems 
requisite  that  the  General  Land  Office  should  be  established 
at  the  seat  of  Government.  It  is  there  that  the  principal  pur- 
chasers, whether  citizens  or  foreigners,  can  most  easily  find 
proper  agents,  and  that  contracts  for  large  purchases  can  be 
best  adjusted.  .  .  ." 

No  actual  settler,  Hamilton  recommended,  should  get  more 
than  one  hundred  acres,  and  the  price  of  land  should  be  thirty 

08  "  Abridgement  of  the  Debates  of  Congress,"  Vol.  I:  113. 


THE   REAL   FORCES  OF   THE   REVOLUTION  I2Q 

cents  an  acre  to  be  paid  either  in  gold,  silver  or  public  se- 
curities. No  credit  should  be  allowed  for  any  purchase  of 
less  quantity  than  a  township  of  ten  miles  square,  nor  more 
than  two  years'  credit  for  any  greater  quantity,  and  one  quar- 
ter of  the  consideration  was  to  be  paid  down."  Although  the 
points  of  this  plan  were  not  immediately  and  formally  adopted, 
yet  its  recommendations  were  practically,  as  we  have  seen,  put 
into  speedy  effect  by  Washington  and  his  cabinet  by  force  of 
executive  authority. 

Constitutional  Convention  Held  in  Secrecy. 

With  an  understanding  of  the  facts,  both  retrospective  and 
anticipatory,  herein  presented,  no  explanation  is  needed  as  to 
why  it  was  that  the  Federal  Constitutional  Convention  held 
its  deliberations  and  proceedings  behind  locked  doors,  as 
TTtilher  Martin,  Attorney-General  of  Maryland  and  a  delegate 
to  the  Convention,  indignantly  reported  to  the  Maryland  Leg- 
islature. No  delegate,  Martin  wrote,  was  allowed  to  cor- 
respond with  his  constituents;  taking  of  notes  was  permitted 
~only  by  special  consent;  the  utmost  precautions  were  exer- 
cised to  prevent  the~  debates  and  acts  from  reaching  the  pub- 
EcT" 

"  So  solicitous,"  wrote  Martin,  "  were  they  that  their  pro- 
ceedings should  not  transpire,  that  the  members  were  pro- 
hibited even  from  taking  copies  of  resolutions,  on  which  the 
Convention  was  deliberating,  or  extracts  from  any  of  the 
journals,  without  formally  moving  for,  and  obtaining  per- 
mission, by  a  vote  of  the  convention  for  that  purpose."  10° 

Here  was  the  epochal  spectacle  of  a  Constitutional  Con- 
vention delegated  in  solemn  meeting  apparently  to  establish 
a  Republican  democracy,  yet  not  daring  to  trust  the  very 
people  for  whom  the  Republic  was  theoretically  founded  with" 

""American    State    Papers:     Public    Lands,"    Vol.   1:8-9.     (Doc. 
No.  3.) 
100  "  Elliott's  Debates,"  etc.,  Vol.  1 :  345. 


130  HISTORY   OF   THE   SUPREME   COURT 

any  knowledge  of  its  proceedings.  Not  until  long  after  were 
the  debates  published.  It  was  not  that  the  delegates  lacked 
trust  in  the  intelligence  of  the  people ;  they  feared  the  results  if 
their  betrayal  of  the  popular  demands  should  become  known. 

When  they  did  become  known,  after  the  Federal  Conven- 
tion had  adopted  the  Constitution,  and  before  the  different 
States  had  taken  action,  there  wa«  a  blaze  of  popular  anger. 
The  various  eminent  delegates  whose  handiwork  it  was  has- 
tened to  exert  every  possible  influence  to  bring  about  its 
adoption  by  the  State  Conventions:  Gorham  and  Gerry  in 
Massachusetts;  Wilson,  Robert  Morris  and  McKean  in  Penn- 
sylvania ;  Washington  in  Virginia ;  Daniel  Carroll  and  Samuel 
Chase  in  Maryland ;  William  Livingston  and  Jonathan  Dayton 
in  New  Jersey;  and  Livingston's  son-in-law,  John  Jay,  and 
Alexander  Hamilton  in  New  York.  In  Delaware  and  Penn- 
sylvania John  Dickinson,  a  member  of  the  Federal  Constitu- 
tional Convention,  was  energetic  for  the  adoption  of  that  in- 
strument ;  Dickinson  had  inherited  the  vast  estate  of  "  Crosia 
—  dore,"  granted  to  Walter  Dickinson  in  1659;  he  had  repre- 
sented the  Penn  Proprietors  and  had  obtained  for  them  $580,- 
ooo  during  the  Revolution  when  their  land  was  declared  for- 
feited; and  he  had  been  President  of  the  Supreme  Council 
of  Pennsylvania.  In  Connecticut  Oliver  Ellsworth  argued 
stoutly  for  the  Constitution ;  the  presiding  officer  of  the  Con- 
necticut Convention  which  ratified  the  Constitution  was  Mat- 
thew Griswold,  who  had  inherited  a  baronial  estate  in  that  col- 
ony, and  was  a  man  of  great  wealth.  But  it  is  quite  needless  to 
enumerate  other  examples. 

In  the  Pennsylvania  Convention  Wilson  appeared  as  the 
principal  defender  of  the  Constitution;  he  admitted  that  the 
popular  view  of  that  instrument  was  that  it  was  designed  to 
perpetuate  the  powers  of  the  aristocracy,  and  he  devoted  his 
arguments  to  attempting  to  counteract  that  belief.  What  Wil- 
son's share  in  the  drafting  of  the  Constitution  of  the  United 
states  was,  and  the  story  of  his  performances  leading  up  to  the 


THE   REAL   FORCES   OF   THE    REVOLUTION  13! 

insertion  of  a  particular  clause  advocated  by  him,  is  told  in 
the  next  chapter. 

These  men  held  constant  secret  conclaves,  or  corresponded 
regularly ;  they  issued  essays  and  publications  filled  with  allur- 
ing arguments  to  influence  the  public  mind.  During  the  pub- 
lication of  the  "  Federalist,"  the  work  so  largely  of  Hamilton 
and  Jay,  the  workingmen  of  New  York  City  showed  their 
feelings  by  a  street  demonstration.  In  trying  with  Hamil- 
ton to  quell  it,  Jay  so  exasperated  his  auditors  that  a  stone 
was  hurled  at  him  striking  him  on  the  head;  he  was  left  for 
dead  but  recovered. 

All  the  great  power  of  the  land  magnates  was  used  to  avert 
the  threatened  danger  of  the  Constitution  being  rejected.  The 
Livingstons,  Van  Rennselaers  and  Schuylers  in  New  York ;  the 
Carrolls  —  the  largest  landowners  in  Maryland,  and  estimated 
one  of  the  very  richest  families  in  the  country  —  these,  and 
all  the  rest  of  the  landed  class  combined  to  beat  into  line  such 
antagonistic  dependents  as  there  were  of  every  stripe  —  law- 
yers, clergy,  college  professors,  tradesmen,  workers  and  news- 
paper editors. 

The  banks  controlled  by  Hamilton,  Wilson,  Robert  Morris, 
Gouverneur  Morris  and  other  delegates  10X  exercised  the  most 
effective  influence  upon  tradesmen  by  the  threat  of  with- 
drawing credit  or  by  harassing  them  should  they  fail  to  sup- 
port the  adoption  of  the  Constitution.102 

Whom  the  Constitution  Pleased. 

These  methods  succeeded  throughout  the  colonies.  Writing 
from  New  York  to  Livingston,  January  14,  1788,  as  to  the 

101  The  history  of  these  banks  is  given  in  Chap.  IV. 

102  It  should  not  be  imagined  that  elections  then  were  "  pure  and  un- 
defiled."     Far  from  it.     The  buying  of  votes  in  New  York  was  an  old 
story.     And  as  far  back  as  March  n,  1752,  the  Legislature  of  Pennsyl- 
vania had  passed  an  act  "  for  the  prevention  of  bribery  and  corruption 
in  the  election  of  Sheriffs  and  Coroners  within  this  province."    Carey 
and  Bioren's  "  Pa.  Laws,"  Vol.  1 :  328. 


132  HISTORY  OF  THE  SUPREME  COURT 

pending  question  of  whether  the  Constitution  was  likely  to  be 
adopted  in  Massachusetts,  General  Henry  Knox  wrote  that 
"  the  commercial  part  of  the  State,  to  which  are  added  all  the 
men  of  considerable  property,  the  clergy,  the  lawyers,  including 
all  of  the  officers  of  the  late  army,  and  also  all  the  neighborhood 
of  all  the  great  towns "  favored  its  adoption.  "  Perhaps," 
added  Knox,  "  many  of  them  would  have  been  still  more 
pleased  with  the  new  Constitution,  had  it  been  more  analogous 
to  the  British  Constitution."  103 

On  the  other  hand,  there  were  not  lacking  exponents  of  the 
popular  hostility;  one  of  these,  writing  under  the  name  of 
"  Brutus,"  expressed  the  opposing  view.  Pointing  out  that 
"  the  farmer,  merchant,  mechanic  and  other  various  orders 
of  the  people  ought  to  be  represented  [in  Congress]  accord- 
ing to  their  respective  weight  and  numbers,"  he  went  on : 

"  According  to  the  common  course  of  human  affairs,  the 
natural  aristocracy  of  the  country  will  be  elected.  Wealth  al- 
ways creates  influence,  and  this  is  generally  increased  in  large 
family  connections;  this  class  in  society  will  forever  have  a 
great  number  of  dependents;  besides  they  will  always  favor 
each  other.  It  is  to  their  interest  to  combine  —  they  will  there- 
fore constantly  unite  their  efforts  to  procure  men  of  their  own 
rank  to  be  elected.  .  .  .  It  is  probable  that  few  of  the 
merchants,  and  those  of  the  most  opulent  and  ambitious,  will 
have  a  representation  from  their  body.  .  .  .  The  great 
body  of  the  yeomen  [the  small  farmers]  of  the  country  can- 
not expect  any  of  their  order  in  this  assembly.  .  .  .  The 
mechanics  of  every  branch  must,  expect  to  be  excluded  from 
a  seat  in  this  body;  .  »-  .  so  that  in  reality  there  will  be 
no  part  of  the  people  represented  but  the  rich,  even  in  that 
branch  of  the  Legislature  called  democratic.  The  well-born, 
and  highest  orders  in  life,  as  they  term  themselves,  will  be 

103  "  Debates  and  Proceedings  In  The  Convention  of  Massachusetts, 
1788,"  etc.,  p.  399.  Gen.  Knox's  wife,  it  may  be  said,  had  inherited  a 
large  share  of  the  great  Waldo  estate,  in  what  is  now  the  State  of 
Maine. 


THE   REAL   FORCES   OF   THE   REVOLUTION  133 

ignorant  of  the  sentiments  of  the  middling  class,"  etc.,  etc. 
The  representation,  continued  the  paper,  "  is  merely  nominal  — 
a  mere  burlesque,  and  that  no  security  is  provided  against  cor- 
ruption and  undue  influence."  104 

Of  the  whole  Constitution  the  people  at  large  were  suspicious 
to  a  degree  little  comprehended  now,  ihey  saw  thatlTwas 
the  product  of  a  convention  composed  mostly  of  manorial  lords 
or  their  attorneys  and  mouthpieces.  They  feared  that  the  so- 
called  democratic  representation  in  Congress  would  resolve 
itself  into  a  continuation  of  the  old  rule  by  the  great  land  own- 
ers  and  traders ;  and  that  they  were  right  events  quickly  proved. 

F>ut  wtiaFespecially  aroused  fears  was  the  judiciary.  Dur- 
ing the  Revolution  only  one  of  the  royal  judges  in  Massachu- 
setts, for  example,  had  espoused  the  popular  cause,  and  this 
particular  one  —  Cushing  —  did  not  do  so  until  he  was  vir- 
tually compelled  to  give  an  expression  of  opinion ;  he  then  be- 
came one  of  the  most  stalwart  and  time-serving  of  the  band  of 
reactionaries.  During  more  than  a  century  the  judges  had 
acted  arrogantly  and  often  corruptly ;  they  had  usurped  powers 
never  granted  to  them,  and  had  assumed  the  right  to  void  laws 
as  much  as  they  pleased.  In  the  Revolutionary  period  some 
judges  were  attacked  by  armed  bodies  of  indignant  patriots 
outraged  by  the  actions  of  those  judicial  reactionaries.  The 
people  had  long  seen  the  landholders  or  their  retainers  put  on 
the  bench;  and  then,  by  the  expedient  of  irresponsible  judicial 
construction,  those  judges  had  validated  titles  obtained  by  fraud 
and  corruption. 

The  greatest  popular  bitterness  manifested  itself  against  the 
courts.  This  feeling,  grounded  on  the  experience  of  centuries 
of  oppression,  was  not  to  be  allayed  by  smooth  explanations  on 
the  part  of  the  advocates  of  the  Constitution.  Of  this  popular 
sentiment  the  makers  of  the  Constitution  were  fully  aware. 
By  adroitly  dwelling  upon  the  principle  of  representation  in 
Congress,  and  by  arguing  and  counter-arguing  about  it,  and 

104  Essay  III  of  "  Brutus,"  Ibid.,  389-391. 


134  HISTORY   OF   THE   SUPREME   COURT 

emphasizing  it,  those  advocates  succeeded,  to  a  considerable  ex- 
tent, in  diverting  the  popular  mind  from  the  tremendous  poten- 
tial power  that  the  Constitution  had  lodged  in  a  small,  omnipo- 
tent body,  appointed  for  life.  This  handful  of  judicial  rulers 
was  the  Supreme  Court  of  the  United  States. 


CHAPTER  IV 
THE  SUPREME  COURT  UNDER  CHIEF-JUSTICE  JOHN  JAY 

If  the  various  elements  dissatisfied  with  the  Constitution 
were  led  into  attaching  too  much  importance  to  the  question  of 
representation  in  Congress,  and  too  little  to  the  immense  poten- 
tial consequence  of  the  Federal  judiciary,  the  powerful  landed 
class  fully  understood  the  supreme  might  of  the  courts. 

As  the  superlative  court  of  courts,  the  newly  created  Su- 
preme Court  of  the  United  States  was  rightly  anticipated  by 
the  manorial  lords  as  the  chief  instrument  by  which  their  inter- 
ests would  be  conserved  and  enlarged.  Holding  an  inherited 
and  expanding  power,  the  accretion  of  centuries,  and  owning 
vast  estates,  the  land  grandees  did  not  purpose  to  surrender 
either  wealth  or  power.  Their  one  guiding  aim  was  to  hold, 
and  extend,  both.  The  import  of  such  concessions  as  during 
those  threatening  times  had  to  be  made  to  the  populace  was 
cunningly  magnified,  but  a  considerable  body  of  the  artisans, 
laborers  and  small  farmers  were  by  no  means  deceived.  Gloss 
and  fine  phrases  aside,  they  saw  with  alarm  that  not  only  had 
the  essentials  of  the  old  conditions  been  retained,  but  that  the 
landholding  families  and  traders  were  now  exercising  limitless 
license  in  securing  great  new  accumulations  of  property,  and 
securing  the  passage  of  whatever  laws  their  interests  and  de- 
signs required. 

Danger  to  the  Manorial  Lords. 

The  Revolution  had  established  the  principle  of  resorting  to 
force  to  accomplish  changes.  With  this  "  perilous  "  idea  per- 
meating the  "  lower  orders,"  there  was  a  considerable  degree 

135 


136  HISTORY    OF   THE    SUPREME    COURT 

of  probability  that  it  might  be  repeatedly  and  formidably  ap- 
plied to  strip  the  manorial  landholders  of  their  privileges  and 
possessions,  and  to  abolish  all  the  superstructure  of  prestige, 
exclusiveness  and  caste.  The  workers  were  demanding  the 
abolition  of  barbaric  laws,  and  the  small  farmers,  located  as 
well  as  intending  settlers,  were  uniting  with  artisans  and  labor- 
ers in  denouncing  the  great  and  continual  land  jobbing  by 
which  powerful  individuals,  lauded  as  "  statesmen,"  were  ap- 
propriating millions  of  acres  of  the  best  soil  and  the  most 
valuable  resources.  The  tenants  of  the  great  manorial  estates 
were  in  a  restless  state,  on  the  verge  of  resorting  to  force  to 
throw  off  the  yoke  riveted  upon  them  by  ancient  laws.  Above 
all,  subversive  doctrines  had  been  agitated ;  no  longer  was  there 
a  semblance  of  reverence  felt  for  the  aristocrats ;  they  were 
looked  upon  as  enemies,  to  be  divested  of  power  at  the  first 
opportunity.  Permeating  what  were  stigmatized  as  the 
"  lower  orders  "  of  society,  there  was  a  revolutionary  aspiration 
for  equality  of  opportunity  and  standing:  that  much  the  Revo- 
lution had  implanted. 

It  has  been  said  that  the  great  value  of  revolutions  is  that 
at  a  blow  they  overcome  all  established  conditions  without  hav- 
ing to  wait  for  the  slow,  cumbrous  processes  of  a  dragging 
course  of  legislation,  too  often  tricky  and  useless.  But  the 
American  Revolution  was  not  a  Revolution  in  the  sense  of  the 
transfer  of  power  from  one  class  to  another.  The  class  seiz- 
ing hold  of  the  reins  after  the  American  Revolution  had  been 
won  well  knew  that  however  that  Revolution  abolished  certain 
forms  and  details,  it  did  not  touch  something  of  far  more  en- 
during and  incisive  effect. 

The  pillar  left  untouched  was  the  long  line  of  privileges  and 
precedents  established  by  a  powerful  feudal  aristocracy  and 
maintained  by  the  courts  since  the  reign  of  Richard  II  of  Eng- 
land, and  even  before.  These  precedents  had  been  established 
for  the  twofold  purpose  of  justifying  the  maraudings,  thefts 
and  summary  frauds  by  which  the  dukes,  lords  and  barons  hacj 


THE   SUPREME    COURT    UNDER   JOHN    JAY  137 

appropriated  the  British  soil,  and  with  the  object  of  holding 
the  working  class  in  complete  subjection.  They  were  princi- 
ples of  law  enunciated  by  judges  put  on  the  bench  by  those 
self-same  pillagers;  very  often  those  judges  were  avowedly 
corrupt,  like  Lord  Bacon,  who  admitted  taking  bribes.  Or,  if 
not  purchasable  by  money,  they  were  biased  instruments  —  a 
fact  well  assured  in  advance  of  their  appointment;  in  fact  they 
would  not  have  been  elevated  to  the  high  bench  by  the  all-pow- 
erful nobility  whose  purposes  they  served  had  their  abject  com- 
pliancy not  been  well  attested.  The  decisions  of  these  judges 
were  followed  by  the  American  colonial  judges;  and  presently 
we  find  the  Supreme  Court  of  the  United  States,  when  in  need 
of  precedents,  going  back  to  Lord  Coke,  Lord  Bacon  and  such 
jurists. 

John  Jay  Chooses  to  be  Chief  Justice. 

The  landed  class,  being  by  virtue  of  its  wealth,  its  cohesive- 
ness  and  its  long  hold  on  government,  the  dominant  class,  had 
no  difficulty  in  getting  President  Washington,  himself  an  ex- 
tensive landholder,  to  fill  the  Supreme  Court  bench  with  men  of 
its  own  class.  When  Washington  gave  John  Jay  his  choice  of 
Federal  offices,  Jay  selected  for  himself,  in  1789,  the  post  of 
Chief  Justice  of  the  Supreme  Court. 

Why  did  Jay  choose  this  position?  It  could  hardly  have 
been  entirely  from  ambition  or  taste,  inasmuch  as  six  years 
later  he  resigned  from  the  Chief  Justiceship  in  order  to  undergo 
a  long  and  tedious  trip  to  Europe  to  execute  a  treaty  by  which, 
among  other  provisions,  alien  landholders  and  their  American 
connections  or  purchasers  were  eventually  able  to  recover  large 
and  highly  valuable  areas  of  confiscated  estates.  By  making 
this  treaty  Jay  performed  a  service  of  inestimable  value  to  the 
landholding  class ;  and  it  can  be  reasonably  inferred  that  when 
he  picked  the  seat  of  Chief  Justiceship  he  realized  the  im- 
measurable importance  of  that  commanding  office.  His  ap- 
pointment was  hailed  with  unconcealed  delight  and  gratification 


138  HISTORY  OF   THE   SUPREME   COURT 

by  the  powerful  landholders ;  among  the  mass  of  people  a  cor- 
responding sense  of  deep  dismay  was  not  slow  in  expressing 
itself. 

By  hereditary  ties  and  family  and  personal  connections,  Jay 
was  allied  by  birth,  marriage  and  interest  with  a  number  of  the 
mightiest  manorial  lords  in  the  United  States. 

His  father,  Peter,  a  rich  merchant  trading  with  the  West 
Indies,  was  the  only  son  of  Augustus  Jay,  who,  in  1685,  had 
married  Anna  Bayard.  The  methods  by  which  Nicholas  Bay- 
ard, her  father,  obtained  from  Fletcher  a  grant  of  land  forty 
miles  long  and  thirty  wide,  have  been  related  in  Chapter  I. 
John  Jay's  mother  was  Mary,  a  daughter  of  Jacobus  Van 
Courtlandt,  a  very  rich  New  York  landholder  and  merchant, 
and  long  a  politician  and  office  holder  of  great  influence,  serv- 
ing in  the  Assembly  and  as  Mayor  of  New  York  City. 

The  Van  Courtlandt  family  was  one  of  the  largest  landhold- 
ers in  the  State,  having  acquired  its  estate  during  the  corrupt 
regimes  of  Governors  Slaughter  and  Fletcher.  Stephanus,  the 
elder  brother  of  Jacobus  Van  Courtlandt,  was  the  right-hand 
lieutenant  of  both  Slaughter  and  Fletcher.  Of  Lord  Bello- 
mont's  full  exposure  of  Fletcher's  bribes  and  corrupt  grants, 
sufficient  details  have  been  given  in  Chapter  I.  In  1683,  Steph- 
anus Van  Courtlandt  fraudulently  secured  a  great  tract  of 
83,000  acres,  extending  on  the  east  side  of  the  Hudson  River, 
by  an  ostensible  purchase  from  the  Indians.  This  was  one 
of  the  "  extravagant  grants  "  that  Lord  Bellomont  did  not 
succeed  in  confiscating. 

In  1697,  this  estate  was  erected  into  the  lordship  and  manor 
of  Courtlandt ;  and  Stephanus  built  a  splendid  manor  house  on 
the  northern  shore  of  Croton  Bay.  He  had  married,  in  1671, 
Gertrude,  a  daughter  of  Schuyler,  who  had  obtained  his  estate, 
too,  by  bribery  and  fraud,  and  whose  descendants,  as  told  in 
Chapter  I,  enlarged  the  estate  by  similar  fraudulent  means  by 
favor  of  Courtlandt  and  other  functionaries  of  the  Provincial 
Council.  Stephanus  Van  Courtlandt  also  secured  great  hold- 


THE   SUPREME   COURT    UNDER   JOHN   JAY  139 

ings  of  land  on  the  west  bank  of  the  Hudson  River,  on  Long 
Island,  and  in  Sussex  County.  Jacobus  Van  Courtlandt  mar- 
ried Eva  de  Vries,  stepdaughter  of  that  Frederick  Phillips  (or 
Philipse,  as  it  was  often  spelled),  whose  career  as  backer  of  the 
pirate,  Captain  Burgess,  and  whose  methods  as  land  appropri- 
ator  have  also  been  described  in  Chapter  I.  Jacobus  had  an  es- 
tate in  Yonkers  which  was  uninterruptedly  owned  by  his  de- 
scendants until  1889,  when  it  was  bought  by  the  City  of  New 
York  and  converted  into  what  is  now  Van  Courtlandt  Park. 
He  also  owned  a  large  estate  at  Bedford,  Westchester  County, 
of  which  estate  a  portion  descended  to  John  Jay. 

Jay's  Further  Powerful  Connections. 

Descended  from  an  intermingled  line  of  landed  families, 
John  Jay  married  into  another  mighty  landed  family,  which, 
despite  its  support  of  the  Revolutionary  movement  for  political 
independence,  had  its  alliance  of  family  and  interests  with 
powerful  British  nobles. 

This  was  the  Livingston  family.  Jay's  wife,  to  whom  he 
was  married  in  April,  1773,  was  a  daughter  of  William  Living- 
ston, fifth  child  of  Philip,  second  Lord  of  Livingston  Manor. 
This  manorial  seat  comprised  a  tract  of  about  160,240  acres  in 
the  northern  part  of  the  present  Dutchess  County,  New  York. 
It  had  been  confirmed  to  the  time-server,  political  turncoat, 
sinecurist  and  army  contractor,  Robert  Livingston,  by  Gov- 
ernor Hunter  in  1715,  with  the  feudal  rights  of  court  leet, 
court  baron  and  advowson.1 

This  property,  however,  was  only  one  of  the  far-reaching 
possessions  of  the  Livingston  family.  William  Livingston  who 
lived  in  New  Jersey,  was  a  delegate  to  the  Federal  Constitu- 
tional Convention,  and  Governor  of  New  Jersey  from  1776  to 
1790.  He  was  very  closely  associated  with  the  Lords  Pro- 

1  Court  leet  was  an  ancient  English  feudal  right  investing  the  holder 
with  the  right  to  hold  court.  Advowson  was  the  right  to  nominate 
ministers,  and  otherwise  control  churches. 


I4O  HISTORY   OF   THE    SUPREME   COURT 

prietors  of  New  Jersey.  We  have  seen  how,  during  that  time, 
John  Livingston,  another  member  of  the  same  family,  and 
acting  for  it,  was  defrauding  the  Indians  of  vast  tracts  of  lard, 
and  compelling  Phelps  and  Gorham  to  admit  him  and  other 
lessees  into  a  partnership  in  the  spoils. 

Peter  Van  Brugh  Livingston,  a  younger  son  of  Philip,  sec- 
ond lord  of  Livingston  Manor  (and  thus  by  marriage  an  uncle 
of  Jay),  had  become  a  rich  merchant  in  partnership  with  his 
brother-in-law  William  Alexander,  subsequently  raised  to  the 
peerage  under  the  title  of  Lord  Stirling.  We  have  noted  how 
William  Alexander  and  Robert  Morris  were  partners  in  that 
contract  to  supply  the  Farmers  General  of  France  with  60,000 
hogsheads  of  tobacco.  Peter  Van  Brugh  Livingston  was  an 
intimate  friend  of  Washington ;  he  was  president  of  the  Pro- 
vincial Congress;  and  after  the  adoption  of  the  New  York 
State  Constitution  of  1777,  he  was  elected  to  the  Legislature, 
and  easily  managed  to  have  himself  chosen  president  of  the 
Assembly. 

Other  members  of  the  Livingston  family  held  high  Federal, 
State  and  New  York  City  offices.  They  were  extraordinarily 
alert  and  self-assertive  —  those  Livingstons. 

At  the  outset  of  the  Revolution  John  Jay  and  Robert  R. 
Livingston  were  associated  as  partners  in  the  practice  of  law. 
This  Robert  was  a  son  of  the  first  Robert  R.  Livingston  who 
had  married  Margaret,  the  daughter  of  Colonel  Henry  Beek- 
man.  How  Henry  Beekman  obtained  two  land  grants  from 
Fletcher,  one  of  sixteen  miles  of  land  in  Dutchess  County,  and 
the  other  running  twenty  miles  along  the  Hudson,  and  eight 
miles  inland,  has  been  related  in  Chapter  I.  By  combining 
his  possessions  with  the  Beekman  estate,  Robert  R.  Livingston 
(the  first)  became  reputed  to  be,  without  exception,  the  richest 
landholder  in  New  York.2 

2  The  foregoing  genealogical  details  are  cited  from  "  Prominent  Fam- 
ilies of  New  York,"  "  National  Cyclopedia  Of  American  Biography," 
and  other  genealogical  and  biographical  works. 


THE   SUPREME   COURT   UNDER  JOHN   JAY  14! 

The  Livingston  Family's  Sway. 

The  political  motto  of  the  Livingston  family  was  direct  and 
concise :  the  family  should  always  derive  benefit,  and  nothing 
of  any  degree  of  value  was  to  escape  it.  Robert  Livingston, 
the  founder  of  their  fortune,  had  got  hold  of  it  primarily 
through  being  a  politician.  Assiduously  emulating  his  ex- 
ample,- his  descendants  set  out  to  thrust  themselves  into  every 
possible  office  and  financial  undertaking. 

Robert  R.  Livingston  the  second  was  a  member  of  the  Con- 
tinental Congress ;  he  was  on  the  committee  drafting  the  New 
York  State  Constitution  of  1777.  Upon  the  adoption  of  that 
instrument,  he  became  the  first  Chancellor  of  New  York  State, 
in  which  position  he  was  promoter  of  a  certain  remarkable 
transaction  which  we  shall  be  under  pressing  need  of  describ- 
ing later.  While  serving  as  Chancellor  he  held  a  Federal  of- 
fice, that  of  Secretary  of  Foreign  Affairs,  a  post  created  by 
Congress  in  1781.  In  1783  Livingston  resigned  this  office,  Jay 
succeeding  him.  Livingston  was  president  of  the  New  York 
Convention  of  1788,  called  to  take  action  on  the  Federal  Con- 
stitution. The  whole  Livingston  family  used  its  influence  for 
the  ratification  of  that  document. 

For  a  century,  the  Livingston  family,  beginning  with  noth- 
ing, and  becoming  one  of  the  richest  in  the  colonies,  had  as- 
siduously pushed  themselves,  their  ties  and  connections  into 
every  office  and  scheme  promising  profit  and  assuring  power. 
Like  Robert  Livingston,  their  progenitor,  they  had  been  sa- 
gacious in  discerning  the  winning  side  in  political  contests,  and 
were  without  compunction  in  changing  front.  Now  the  Liv- 
ingstons again  proved  their  political  skill  and  great  power  by 
having  Jay  installed  as  Chief  Justice  of  the  Supreme  Court  of 
the.  United  States. 

Of  an  intensely  aristocratic  mind,  haughty  and  arrogant, 
Jay,  filled  with  the  views  of  his  class,  both  feared  and  despised 
the  people.  The  laws  so  signally  and  disproportionately  favor- 


142  HISTORY   OF   THE    SUPREME   COURT 

ing  the  class  of  wealth,  and  burdening  the  workers,  were  the 
laws  he  had  studied  and  absorbed;  he  considered  them  the 
proper  laws  and  strove  at  every  opportunity  to  perpetuate 
them.  During  the  Revolution,  he,  Hamilton,  the  Livingstons, 
the  Schuylers  and  other  relatives  or  personal  friends  of  their 
class  had  their  private  political  club,  in  the  arcana  of  which 
they  discussed  the  turn  of  affairs  and  plotted  conservative 
measures.  Previous  to  the  Federal  Constitutional  Convention, 
Jay  wrote  to  Washington  that  he  favored  a  Congress  to  be 
composed  of  two  houses  —  the  upper  chamber  to  be  elected  for 
life. 

Many  of  Jay's  relatives  and  associates,  as  we  have  already 
seen,  and  as  we  shall  perceive  yet  more  clearly,  were  thor- 
oughly unscrupulous  in  design,  and  corrupt  in  execution.  We 
have  remarked  how  Hamilton,  Robert  Morris  and  Jay  held  a 
private  meeting  to  discuss  land  speculations,  and  how  Morris, 
Livingston  and  their  associates  successfully  manipulated  the 
legislatures,  and  defrauded  the  Indians  out  of  a  huge  domain ; 
how  Hamilton,  as  the  confidential  agent  of  John  B.  Church, 
who  had  grown  extra  rich  out  of  the  commissary  department 
of  the  Revolutionary  army,  advanced  money  to  Morris  for  his 
land  speculations  —  this,  too,  has  been  narrated.  '  Frequently 
Hamilton  was  charged  with  peculations, —  an  accusation 
against  which  his  partisan  and  personal  friends  stoutly  de- 
fended him.3 

Open  charges  of  corruption  were  also  made  against  Jay. 
In  his  celebrated  pamphlet  * —  one  of  the  effects  of  which  was 
the  battering  down  of  the  Federalist  Party  —  John  Thompson 
Callender  boldly  asserted  Jay's  corruption.  "  If  Washington," 
wrote  Callender,  "  wanted  to  corrupt  the  American  judges,  he 
could  not  have  taken  a  more  decisive  step  than  by  the  appoint- 
ment of  Jay." 

This  statement  is  merely  a  general  one,  made  in  a  partisan 

8  See  Henry  Adams'  "  New  England  Federalism,  1800-1815  " :  63. 
4  "  The  Prospect  Before  Us,"  p.  34. 


THE    SUPREME    COURT    UNDER   JOHN    JAY  143 

spirit,  and  unsupported  by  proof.  Yet  it  is  invested  with  a 
certain  weight  by  reason  of  the  fact  that  its  author  was  willing 
to  risk  indictment  and  trial  by  publishing  his  strictures  in  the 
face  of  the  Alien  and  Sedition  Act.  This  law,  passed  in  des- 
peration by  the  Federalists  to  stifle  criticism,  was  rigorously 
enforced  and  interpreted.5  Calender's  statement  came  at  a 
time  when,  as  we  shall  see,  Jay's  relatives  and  friends  were  un- 
disguisedly,  by  force  of  legislative  enactment  and  by  the  use 
of  their  official  positions  and  the  courts,  consummating  great 
schemes  of  spoliation  in  different  directions. 

Through  Jay,  the  Landholders  Control. 

The  charges  of  personal  corruption  were,  however,  com- 
paratively immaterial.  Not  so  much  in  a  statutory  sense  but 
in  a  far  more  subtle,  efficacious  and  dangerous  degree  Jay's 
mind  was  corrupted.  His  acts,  generally  speaking,  were  the 
product  of  that  species  of  corruption.  Against  the  "  lower  or- 
ders "  his  mind  was  filled  with  a  mass  of  inflexible  prejudices; 
he  distrusted  and  dreaded  them,  and  he  held  it  laudable  to  curb 
their  menacing  aspirations.  But  in  the  rich  and  "  well-born," 
Jay  saw  nothing  but  "  intelligence,  wisdom,  virtue  and  stabil- 
ity "•  —  one  of  the  cant  political  phrases  of  the  day,  manifesting, 
however,  what  the  aristocracy  really  thought  of  itself. 

This  was  the  class  to  whom  the  directing  of  government  was 
to  be  intrusted  and  vigilantly  restricted.  In  this  class,  accord- 
ing to  Jay's  creed,  lay  the  right  to  rule  with  a  strong  hand ;  it 
was  justifiable  to  strain  every  point  to  advance  the  political 
and  pecuniary  interests  of  the  rich,  and  assure  their  supremacy. 
But  nothing  should  be  done  to  better  the  status  of  the  work- 
ers, by  increasing  whose  power  that  of  the  landholders  and 
other  capitalists  would  be  correspondingly  diminished. 

It  is  idle  to  inquire  into  the  honesty  or  dishonesty  of  these 

5  It  was  partly  for  the  methods  used  in  procuring  Callender's  convic- 
tion that  impeachment  proceedings  were  brought  against  Justice  Samuel 
Chase,  in  1805.  See  later. 


144  HISTORY  OF  fHE   SUPREME   COURT 

beliefs.  Springing  from  the  personal  interests  of  those  hold- 
ing them,  they  were  not  individual,  but  class,  beliefs.  Those 
who  declaimed  against  Jay's  appointment  did  not  clearly  see 
that  it  was  a  very  natural  result.  With  the  landholding  class 
guiding  the  currents  of  the  Revolution,  and  controlling  the 
conventions,  it  was  an  inevitable  conclusion  that  great  land- 
holders should  occupy,  personally  01  through  agents,  the  offices 
of  government,  especially  what  they  then  completely  realized 
was  the  most  puissant  branch  —  the  judiciary. 

The  insurrections  in  various  States  and  the  threatening 
movements  of  tenants  on  some  of  the  manorial  estates,  were 
among  the  evidences  of  deep  popular  ferment.  Laws  aimed  at 
the  landholders  were  always  a  possibility  to  be  reckoned  with 
and  provided  against.  If  such  laws  were  passed,  the  final  re- 
source of  the  landholders  would  be  the  courts.  The  courts 
would  be  the  bulwark  against  popular  encroachments ;  the 
courts  would  know  how  to  find  means  of  taking  the  stings 
out  of  laws  hostile  to  their  class.  All  these  tactics  were  not 
only  clearly  thought  out;  they  were  discussed  in  aristocratic 
clubs,  and  affirmed  in  the  private  circles  of  the  judges  them- 
selves. Having  himself  large  landed  possessions,  and  con- 
nected by  family  ties,  associations  or  other  connections  of  in- 
terest, with  many  of  the  most  powerful  landholding  families  in 
the  country,  Jay,  from  that  class  point  of  view,  was  an  ideal 
man  for  the  Chief  Justiceship.  His  associates  (the  Supreme 
Court  was  then  composed  of  five  members  in  all)  were  like- 
wise of  the  landholders  or  attached  to  them  in  interest. 

The  Associate  Justices. 

The  first  Associate  Justice  appointed  ty  Washington,  John 
Rutledge,  represented  a  different  division  of  landholders.  He 
had  inherited  wealth  from  his  father,  who  had  married  Sarah 
Hext,  an  heiress  of  famed  beauty.  Studying  law  in  England, 
Rutledge  had  returned  to  his  home  in  South  Carolina,  and 


THE    SUPREME    COURT    UNDER   JOHN    JAY  145 

there  was  attorney  for  plantation  owners.  In  the  Federal 
Constitutional  Convention  he  had  been  the  chief  mouthpiece 
of  the  Southern  slave  holders,  who,  possessing  great  rice,  cot- 
ton and  other  plantations,  found  negro  slavery  profitable.  He, 
perhaps  more  than  any  other  delegate,  was  instrumental  in  de- 
feating in  that  Convention  the  proposition  to  prevent  the  im- 
portation of  slaves.  Rutledge  remained  on  the  Supreme  Court 
bench  for  a  short  time  only,  resigning  in  1791  to  become  Chief 
Justice  of  the  Supreme  Court  of  South  Carolina. 

Judge  William  Cushing,  of  Massachusetts,  was  the  third  in 
order  of  Washington's  appointments.  He  was  the  scion  of 
two  generations  of  royal  judges.  His  grandfather  long  held 
the  position  of  a  judge  of  the  Supreme  Court  of  Massachu- 
setts, and  his  father  succeeded,  remaining  a  judge  of  that  court 
for  a  period  of  twenty-five  years.  His  father  resigning  from 
the  Massachusetts  Supreme  Court  bench  in  1771,  William 
Cushing  became  his  successor. 

At  the  age  of  fifteen,  William  Cushing  had  entered  Harvard, 
where,  as  we  have  noted,  it  was  the  custom  to  tabulate  and 
range  students  according  to  their  social  rank ;  as  the  son  of  a 
royal  judge  William  Cushing  occupied  the  first  order.  During 
the  four  plastic  years  that  he  studied  at  Harvard,  he  could  not 
help  absorbing  the  caste  spirit  pervading  that  institution,  which 
experience,  added  to  that  derived  from  his  home  environment 
and  the  atmosphere  of  rich  associates,  determined  completely 
the  bent  of  his  mind  and  prejudices.  The  decisions  of  his 
grandfather,  father  and  his  own  were  always  favorable  to  the 
governing  class.  Down  to  the  critical  years  preceding  the  ac- 
tual outbreak  of  the  Revolution  he  so  carefully  refrained  from 
expressing  his  views  on  that  event  that  they  were  not  known 
until  he  was  directly  challenged  to  reply  whether  he  would  re- 
ceive his  salary  from  the  province  or  the  crown.  He  finally 
decided  to  support  the  colonies  —  an  exceptional  step,  inasmuch 
as  he  was  the  only  one  of  the  royal  judges  in  the  whole  of 
Massachusetts  to  turn  rebel. 


146  HISTORY   OF   THE    SUPREME    COURT 

On  the  reorganization  of  the  Massachusetts  judiciary,  he 
became  one  of  the  judges  of  its  Supreme  Court,  and  on  the 
resignation  of  John  Adams,  Gushing  was  elevated  to  be  the 
Chief  Justice,  which  office  he  held  for  twelve  years.0 

Here  he  made  himself  extremely  obnoxious  to  the  laboring 
and  yeoman  classes  by  his  decisions  and  attitude.  In  1785  and 
1786  an  uprising,  or  insurrection  as  it  was  called,  took  place 
in  New  England.  It  was  a  movement  caused  partially  by  the 
continued  appropriation  of  land  by  a  few,  and  the  resulting 
evils,  and  more  largely  by  the  spurious  currency  issued  by 
the  financiers  and  other  prominent  leaders  of  the  Revolution. 

Suffering  from  debts,  with  no  adequate  means  of  paying 
them,  numbers  of  the  people  rose  in  armed  revolt.  They  com- 
plained, and  with  the  fullest  justice,  that  while  the  landhold- 
ers and  shippers  were  enriching  themselves  by  all  manner  of 
schemes  and  practices,  and  making  laws  as  they  willed,  the 
debtors'  laws  were  enforced  against  the  poor  with  pitiless 
rigor.  The  jails  were  crowded  with  poor  debtors.  For  this 
condition  the  courts  were  especially  blamed ;  they  were  de- 
nounced as  "  rich  men's  courts,"  and  their  discrimination  in 
applying  law  aroused  the  most  intense  bitterness.  The  pop- 
ular orators  pointed  out  how,  while  "  rich  knaves  and  power- 
ful plunderers  "  were  allowed  to  keep  their  loot,  the  law  was 
applied  mercilessly  to  those  having  no  property.  On  one  oc- 
casion, Cushing's  court  was  surrounded  by  an  armed  body  of 
insurrectionists;  and  although  he  and  other  judges  declared 
that  "  mob  rule  "  would  not  influence  them,  the  force  of  pop- 
ular feeling  was  so  great  and  threatening  that  the  Massachu- 
setts Legislature  passed  a  law  delaying  the  collection  of  debts. 

Cushing  sided  wholly  with  the  conservatives, —  as  the  land- 

6  Prior  to  the  Revolution,  judges  of  the  high  courts  in  Massachusetts 
dressed  impressively  in  scarlet  robes,  with  deep  facings  and  cuffs  of 
black  velvet.  They  wore  wigs  adorned  with  black  silk  bags,  and  were 
privileged  to  wear  swords  while  on  the  bench.  In  the  summer,  how- 
ever, black  silk  gowns  were  substituted  for  the  robes.  The  object  was, 
of  course,  to  invest  themselves  with  an  atmosphere  of  awe. 


THE  SUPREME  COURT  UNDER  JOHN  JAY  147 

holders  and  merchants  were  termed.  He  was  not  only  a  mem- 
ber of  the  Massachusetts  Convention  of  1788,  but  he  presided 
over  the  debates  during  the  greater  part  of  the  session,  dur- 
ing the  absence  of  John  Hancock ;  and  it  was  by  the  influence 
of  such  men  as  Elbridge  Gerry,  Nathaniel  Gorham,  John 
Adams  and  others,  joined  with  his  own,  that  the  Federal  Con- 
stitutional Convention  was  ratified.  As  an  Associate  Justice 
of  the  Supreme  Court  of  the  United  States  he  presided  over 
that  court  in  the  absence  of  John  Jay ;  he  remained  on  the 
bench  until  his  seventy-eighth  year,  in  1810. 

The  career  of  Washington's  next  appointee,  James  Wilson, 
chosen  as  an  Associate  Justice  in  1789,  necessitates  so  ex- 
tended a  narrative,  that  the  description  will  be  deferred  until 
a  few  words  have  been  said  about  Washington's  other  ap- 
pointees. 

John  Blair,  appointed  an  Associate  Justice  in  1790,  was  a 
personal  friend  of  Washington ;  he  came  from  Williamsburg, 
Virginia,  had  studied  law  in  London,  England,  had  been  a 
member  of  the  Virginia  Council,  a  judge,  Chief  Justice,  and 
Chancellor  in  that  province,  and,  as  a  member  of  the  Federal 
Constitutional  Convention,  had  voted  for  the  adoption  of  the 
Constitution.  After  a  few  years'  service  in  the  Supreme  Court 
of  the  United  States,  he  resigned. 

James  Iredell,  appointed  in  the  same  year,  was  the  leader 
of  the  Federalist  Party  in  North  Carolina.  He  was  the  son 
of  a  merchant  in  Bristol,  England,  who,  when  James  was 
seventeen  years  old,  had  sent  him  to  North  Carolina.  He  be- 
came a  deputy  collector,  supported  the  movement  for  political 
independence,7  was  appointed  a  judge  of  the  Superior  Court  of 
North  Carolina,  in  1777,  and  then  Attorney-General  of  that 
State.  In  the  North  Carolina  Convention  of  1788,  called  to 
decide  on  the  question  of  the  Federal  Constitution,  he  strenu- 
ously tried  to  secure  its  adoption,  but  failed. 

7  It  was  said  of  Tredell  that  by  taking  this  step  he  alienated  the  favor 
of  a  rich  uncle  whose  fortune  he  would  have  inherited. 


148  HISTORY   OF   THE    SUPREME    COURT 

Iredell's  chief  occupation  during  that  period  was  in  acting 
as  the  attorney  for  large  North  Carolina  landholders,  espe- 
cially those  whose  estates  had  been  confiscated.  He  was,  for 
instance,  the  representative  of  the  McCullohs,  as  well  as  their 
kinsman.  Henry  McCulloh  had,  under  British  rule,  held  vari- 
ous offices,  including  that  of  Commissioner  of  Crown  Lands. 
He  obtained  a  patent  for  1,200,000  acres  for  himself  and  asso- 
ciates, but  because  of  his  failure  to  induce  immigration  to  his 
huge  domain,  his  affairs  became  somewhat  embarrassed.  How- 
ever, he  held  onto  a  vast  area  of  land;  and  in  1761,  he  caused 
his  son,  Henry  Eustace  McCulloh,  an  English  lawyer,  to  come 
to  North  Carolina  and  act  as  his  agent.  There  the  younger 
McCulloh  became  a  member  of  the  Provincial  Council,  Col- 
lector of  the  Port  of  Roanoke,  and  later  Representative  in 
England  of  the  Colony  of  North  Carolina.  As  a  member  of  the 
North  Carolina  Council,  Henry  Eustace  McCulloh  "  sold  his 
vote,"  says  Sabine,  "  in  favor  of  the  Tuscarora  grant  of  lands 
to  Williams,  Pugh  and  Jones  for  a  thousand  acres  of  land. 
The  fact  that  he  was  thus  bribed  seems  to  have  been  notorious. 
.  .  ."  Sabine  goes  on  to  tell  that  such  was  McCulloh's 
"tact  and  address,"  that  when  he  adjusted  his  father's  ac- 
counts with  the  Crown,  he  got  "  64,000  acres,  without  the  pay- 
ment of  a  single  dollar."  How  he  managed  to  do  this,  Sabine, 
unfortunately,  does  not  tell. 

The  elder  McCulloh's  estate  was  apparently  confiscated,  but 
he  had  previously  conveyed  it  to  his  son.  In  1779,  when 
Henry  Eustace  McCulloh's  estate  was  confiscated,  he  went  to 
England  as  agent  for  the  North  Carolina  loyalists  in  prose- 
"cuting  their  claims  for  indemnity  from  the  British  Government. 
"He  himself,"  Sabine  relates,  "was  a  claimant;  and  though 
he  received  a  considerable  sum,  he  was  dissatisfied."  Sabine 
further  relates  that  when  McCulloh  was  in  England,  Judge 
Iredell  "  rendered  him  much  valuable  service  "  in  North  Caro- 
lina-for  which,  in  return,  Iredell  considered  himself  badly 
treated;  the  particular  nature  of  the  service  Sabine  does  not 


THE   SUPREME    COURT    UNDER   JOHN    JAY  149 

disclose.8  Iredell  served  on  the  bench  of  the  Supreme  Court 
of  the  United  States  until  1799. 

Thomas  Johnson,  appointed  by  Washington  in  1791,  and 
serving  until  1793,  came  from  Maryland,  was  an  ardent  Fed- 
eralist, and  also  belonged  to  the  landholding  group.  The  arbi- 
trary tone  of  the  judiciary  at  that  time  may  be  seen  from  the 
fact  that  when  the  Grand  Jury,  at  Baltimore,  handed  in  a  pre- 
sentment against  him  for  holding  a  place  in  two  courts  at  the 
same  time,  Johnson  haughtily  told  them  to  confine  themselves 
to  their  proper  sphere. 

The  next  Associate  Justice,  appointed  in  1793  by  Washing- 
ton, was  William  Paterson,  of  New  Jersey.  Paterson  was 
directly  connected  with  the  Van  Rensselaer  family,  with  the 
Lords  Proprietors  of  New  Jersey,  and  was  the  right-hand 
auxiliary  of  Governor  William  Livingston.  By  family  ties 
of  various  kinds  Paterson  was  also  connected  with  many  other 
large  landholding  families.  Stephen  Van  Rensselaer  Paterson, 
a  twin  brother  of  William  Paterson,  was  long  a  Surveyor-Gen- 
eral of  the  Lords  Proprietors  of  New  Jersey.  The  mother  of 
Stephen  Van  Rensselaer  (the  elder  Stephen  —  there  were 
father  and  son  of  that  name)  was  a  daughter  of  Philip  Liv- 
ingston, lord  of  Livingston  Manor.  After  his  graduation  from 
Harvard,  in  1782,  Stephen  Van  Rensselaer  had  been  married 
to  a  daughter  of  General  Philip  Schuyler ;  hence  by  marriage, 
becoming  a  brother-in-law  of  Alexander  Hamilton.  Stephen 
Van  Rensselaer's  second  wife  was  a  daughter  of  Justice  Wil- 
liam Paterson.  The  immensity  of  Stephen  Van  Rensselaer's 
estate  may  be  judged  from  the  fact  that  in  Rensselaer  and  Al- 
bany counties,  New  York,  he  owned  3,000  farms  or  about  436,- 
ooo  acres.9  The  quasi-feudal  conditions  prevailing  on  the 

8  ''  Loyalists  of  the  American  Revolution,"  Vol.  II :  54. 

0  Each  of  the  various  members  of  this  family  were  large  landholders. 
In  1782  John  Van  Rensselaer  held  about  32,000  acres  in  New  York, 
part  of  which  land  he  had  leased  on  permanent  ground  rents,  part  for 
life,  and  the  residue  in  fee  simple.  Out  of  the  entailing  of  his  estate 
grew  protracted  litigation.  (See  case  of  Van  Rensselaer  vs.  Kearney  et. 
al.,  Howard's  Reports,  Supreme  Court  of  the  United  States,  Vol.  II  : 


150  HISTORY   OF   THE   SUPREME   COURT 

Livingston,  Van  Rensselacr  and  other  New  York  estates  sur- 
vived to  the  year  i846,10  and  were  the  prime  cause  of  various 
uprisings  of  the  eighteenth  century,  and  of  the  Anti-Renters' 
movement  of  1847-49.  William  Paterson  had  long  been  one 
of  the  most  active  politicians  in  New  Jersey ;  as  a  member  of 
the  Federal  Constitutional  Convention  he  was,  of  course, 
aligned  with  the  landholding  class.  After  serving  as  a  United 
States  senator,  he  had  succeeded  William  Livingston  as  Gov- 
ernor of  New  Jersey. 

Samuel  Chase,  appointed  an  Associate  Justice  by  Washing- 
ton, in  1796,  was  a  landholder  and  promoter  of  various  enter- 
prises. Born  in  Maryland,  in  1741,  the  son  of  a  Protestant 
Episcopalian  clergyman,  he  became  a  lawyer  representing  large 
landholders  and  shippers.  An  indefatigable  politician,  he  in- 
variably got  what  he  sought  when  he  wanted  a  private  act  for 
his  special  benefit  from  the  Maryland  Legislature.  He  was  a 
signer  of  the  Declaration  of  Independence,  and  was  authorized 
by  the  Maryland  act  of  1783  to  go  to  England  and  obtain  from 
two  fugitive  loyalists  a  transfer  of  Bank  of  England  stock  be- 
longing to  the  State  of  Maryland,  for  which  mission  Chase 
was  praised  by  the  Maryland  Assembly  for  his  "  great  zeal, 
fidelity  and  ability."  " 

Becoming  heavily  involved  in  two  land  companies,  Chase  pe- 
titioned the  Legislature  for  relief.  In  his  memorial  he  set 
forth  that,  in  association  with  several  others  in  these  compa- 
nies, he  had  become  very  largely  indebted  to  the  State  and  to 
private  creditors ;  that  he  personally  owed  considerable  sums 
of  money,  and  also  his  partnership  debts;  and  that  his  prop- 
erty was  greatly  insufficient  to  pay  his  debts.  He  further 
stated  that  he  had  proposed  to  Thomas  Dorsey,  the  only  solvent 
partner  in  the  two  companies,  to  convey  to  Dorsey  all  his 

10  "  >jew  York  Constitution ;  Debates  In  Convention,  1846  " :  1052-1056. 
Mr.  Jordan,  a  delegate  to  the  Convention  of  1846,  denounced  the  feudal 
conditions.     It  was,  he  said,  from  such  things  relief  was  asked ;  "  which 
although  the  moral  sense  of  the  community  will  not  admit  to  be  en- 
forced, are  still  actually  in  existence." 

11  "Laws  of  Maryland,  1682-1784,"  Vol.  I,  Chap.  76. 


THE   SUPREME    COURT    UNDER   JOHN    JAY  1$! 

claims  to  all  property  in  the  two  companies,  and  also  his  claim 
to  an  undivided  eighth  part  of  certain  confiscated  British  coal 
and  iron  lands  called  the  Nottingham  Forges  and  White  Marsh 
Furnace.  These  two  properties  comprised  several  thousand 
acres,  and  carried  with  them  sixty  negro  slaves,  some  teams, 
coal  wagons,  houses  and  household  furniture,  and  also  three 
hundred  and  forty-eight  acres  of  a  tract  called  Darnall's  Camp, 
bought  by  Chase  and  his  partners  from  the  State. 

Why  he  fell  into  debt  Chase  did  not  explain.  But  the  Leg- 
islature was  accommodating.  It  passed  a  special  act  that  if 
Chase  conveyed  the  property  to  Dorsey,  he  should  be  dis- 
charged from  all  debts,  and  that  if  any  process  was  issued 
against  Chase  it  should  be  quashed.12  It  need  scarcely  be  said 
that,  at  the  same  time,  the  iron  laws  against  poor  debtors  were 
being  ruthlessly  enforced  in  all  of  the  courts  with  steadfast 
rigor ;  prisons  were  crowded  with  debtors  whose  only  crime 
was  that  they  owed  a  few  dollars.13  Justice  Chase's  extreme 
arrogance,  and  his  abuse  of  the  functions  of  the  Supreme  Court 
of  the  United  States  for  partisan  purposes,  later  caused  im- 
peachment proceedings  to  be  brought  against  him.14 

Career  of  Justice  James  Wilson. 

John  Jay  and  the  sundry  Associate  Justices  were  able  men, 
but  in  certain  respects,  the  most  energetic,  dominating  member 
of  the  Supreme  Court  from  1789  to  1798  was  James  Wilson. 
He,  perhaps,  more  than  any  other  incumbent  left  the  stamp  of 
his  particular  subtle  legal  astuteness  and  his  individuality  upon 
the  proceedings  and  annals  of  that  court.  Washington  valued 

™Ibid.,  Vol.  II,  Chap.  10. 

13  This  condition  long  continued.     A  report  for  the  year  ending  No- 
vember 26,  1831,  revealed  that  nearly  one  thousand  citizens  had  been 
imprisoned  for  debt  in  Baltimore.     More  than  half  of  this  number  owed 
less  than  ten  dollars,  and  of  the  entire  number,  only  thirty-four  were 
individually  under  debts  exceeding  one  hundred  dollars. —  Reports  of 
Committees,  First  Session,  Twenty-Fourth  Congress,  Vol.   II,   Report 
No.  732:  2. 

14  See  Chapter  V. 


152  HISTORY   OF   THE   SUPREME   COURT 

his  learning  so  highly,  that  he  placed  his  favorite  nephew, 
Bushrod  Washington  (later  an  Associate  Justice  of  the  Su- 
preme Court)  in  Wilson's  office  to  study  law,  personally  pay- 
ing Wilson  for  his  nephew's  tuition.  Wilson  was  deeply 
grounded  in  all  of  the  subtleties  of  Roman  and  mediaeval  law, 
and  very  resourceful  in  never  being  at  a  loss  for  impressive 
authorities  and  precedents. 

A  Scotch  lawyer,  Wilson  had  emigrated  to  America.  Here 
he  made  good  headway ;  his  clients  were  rich,  and  he  was  suc- 
cessful in  their  suits.  Although  he  supported  the  movement 
for  independence,  he  brought  upon  himself  popular  hatred  by 
his  sneers  at  the  "  lower  orders,"  and  his  utterances  and  acts 
in  support  of  rich  Tories  whom  he  defended  during  the  Rev- 
olution. Pamphlets  and  other  writings  of  the  time  abound  in 
ridicule  of  his  "  lofty  strut,"  and  in  denunciations  of  his  atti- 
tude. 

More  serious  was  an  attack  upon  him,  on  October  4,  1779, 
during  his  stay  in  Annapolis.  Enraged  at  his  conduct,  a  group 
of  patriots  rushed  up  to  his  house,  and  opened  fire  with  a 
cannon.  Anticipating  this,  Wilson  had  gathered  his  friends 
and  had  turned  his  house  into  a  miniature  fortress.  The  city 
troop  were  hurriedly  summoned,  the  attackers  was  fired  on, 
and  several  were  killed  and  wounded. 

Whatever  were  Wilson's  acts  and  crimes,  he,  at  least,  was 
audaciously  open  and  honest  in  his  truckling  to  the  rich  and  in 
his  advocacy  of  their  class  interests ;  at  a  time  when  most 
politicians  were  secretly  betraying  the  Revolution,  while  in 
words  prating  of  democracy,  this  candid  quality  of  Wilson's 
was  certainly  a  virtue.  Had  he  been  lost,  the  whole  capitalist 
class  of  to-day  would  have  had  good  reason  to  mourn  him.  In 
the  Federal  Constitutional  Convention,  in  which  he  was  a 
delegate  from  Pennsylvania,  he  did  some  extraordinary  skill- 
ful work ;  to  him  is  due  the  farsightedness  of  inserting  in  the 
Constitution  of  the  United  States  a  modest-looking  little  clause 
which,  however,  has  had  the  most  far-reaching  consequences, 


THE    SUPREME    COURT    UNDER   JOHN    JAY  153 

And  the  fact  that  it  was  the  personal  experience  of  himself, 
Robert  and  Gouverneur  Morris,  Thomas  Fitzsimmons  and 
other  Constitutional  molders,  in  the  notorious  Bank  of  North 
America  transaction,  that  led  to  the  drafting  and  adoption  of 
that  clause,  tends  to  prove  that  the  men  who  drafted  the  Con- 
stitution knew  fully  the  secret  and  ultimate  purport  of  every 
clause. 


The  Bank  of  North  America  Transaction. 

Under  the  patriotic  pretence  that  the  charter  for  which  they 
asked  was  for  a  union  of  citizens  to  supply  the  army,  a  group 
of  politicians,  on  April  i,  1782,  pushed  an  act  through  the 
Pennsylvania  Legislature,  incorporating  the  Bank  of  North 
America.  This  bank  had  been  chartered  by  the  Continental 
Congress  in  1781,  but  under  the  then  loose  Confederated  gov- 
ernment, that  charter  was  not  believed  to  be  of  any  compre- 
hensive account.  The  principal  promoter  of  that  charter  in 
the  Continental  Congress  was  George  Clymer,  of  Philadel- 
phia ;  he  and  John  Nixon  were  appointed  by  Congress  to  re- 
ceive subscriptions  for  the  Bank  of  North  America.  Clymer, 
in  1765,  had  married  Elizabeth,  a  daughter  of  Reese  Meredith, 
one  of  the  leading  Philadelphia  merchants  and  shippers.  With 
his  father-in-law,  and  later  with  his  brother-in-law,  Samuel 
Meredith,  Clymer  engaged  in  an  extensive  mercantile  business. 
He  subsequently  became  the  first  president  of  the  Philadelphia 
Bank.  . 

By  the  provisions  of  the  Pennsylvania  Legislative  act,  the 
capital  of  the  Bank  of  North  America  was  placed  at  ten  million 
"  Spanish  milled  dollars  and  no  more."  15  The  directors  of 
the  bank,  as  specified  by  name  in  the  act,  comprised  some  of 
the  foremost  merchants  and  lawyers  in  Pennsylvania.  Thomas 
Willing,  partner  of  Robert  Morris,  was  designated  as  presi- 
dent. The  directors  named  were  James  Wilson,  Thomas  Fitz- 

13  "  Statutes  At  Large  of  Pa.,  1779-1781,"  Vol  X :  406-408.  The  actual 
amount  of  its  capital  in  American  currency  was  about  $400,000. 


154  HISTORY  OF   THE   SUPREME   COURT 

simmons,  Cadwallader  Morris,  Samuel  Osgood,  William  Bing- 
ham  (one  of  the  richest  Pennsylvania  merchants),  Samuel 
Inglis,  Samuel  Meredith  and  others.10  Wilson  was  also  at- 
torney for  the  bank,  and  in  that  representation  Gouverneur 
Morris  was  associated  with  him.  Of  these  men,  four  became 
delegates  to  the  Federal  Constitutional  Convention  held  five 
years  later  —  James  Wilson,  Thomas  Fitzsimmons,  George 
Clymer,  and  Gouverneur  Morris.  Robert  Morris,  who  was 
deeply  interested  in  the  bank  through  his  partner  Gouverneur 
Morris,  was  also  a  member  of  the  Federal  Constitutional  Con- 
vention. 

In  his  work,  published  in  1833,"  Gouge  says  that  in  nowise 
did  the  bank  aid  the  Government ;  that  the  stockholders  acted 
fraudulently  in  paying  in  only  $70,000,  or  seven-fortieths  of 
its  capital.  Robert  Morris,  then  controlling  the  financial  de- 
partment of  the  Revolution,  deposited  $254,000  in  the  Bank  of 
North  America,  and  credited  the  Government  with  that  amount 
of  stock  in  the  bank.  Thus,  by  this  ambidexterous  operation, 
the  individual  stockholders  acquired  the  power  to  circulate 
$400,000  in  the  bank's  notes.  The  Government's  own  money 
was  loaned  back  to  it,  and  to  other  borrowers,  as  also  the 
$400,000  additional  money  which  the  Government's  deposits 
and  sanction  soon  made  current  at  par  value.  From  these 
fraudulent  methods  the  bank's  stockholders  reaped  from  twelve 
to  sixteen  per  cent,  dividends.  "  In  1785,"  says  Gouge,  of  the 
Bank  of  North  America,  "  the  effects  of  its  operation  began 
to  be  apparent.  ...  A  temporary  plenti fulness  of  money, 
followed  by  great  scarcity,  usury,  ruin  to  the  many,  riches  to 
the  few." 

The  Origin  of  a  Famous  Constitutional  Clause. 

Public  outcry  compelled  the  Pennsylvania  Legislature  to  act. 
On  September  13,  1785,  an  act  repealing  the  Bank  of  North 

""Statutes  at  Large  of  Pa.,  1779-1781,"  Vol.  X:  406-408. 

*7 "  History  of  Paper  Money  and  Banking  In  The  United  States." 


THE   SUPREME   COURT   UNDER   JOHN   JAY  I$5 

America's  charter  was  passed,  the  preamble  of  which  act  read : 
"  Whereas  the  bank  established  in  the  city  of  Philadelphia 
hath  been  found  to  be  injurious  to  the  welfare  of  this  State, 
and  in  its  tendency  appears  to  be  incompatible  with  the  public 
safety,  Therefore,"  etc.,  etc.18  The  profits,  however,  were  so 
rich  that  the  directors  had  no  intention  of  allowing  the  repeal- 
ing act  to  stand.  James  Wilson  and  Gouverneur  Morris,  as 
the  bank's  attorneys,  argued  vigorously  in  the  Legislature : 
Was  not  the  passage  of  the  original  act  a  grant  of  a  vested 
right  ?  Could  the  charter  be  repealed  without  impairing  vested 
rights,  and  the  rights  of  innocent  parties  ?  Whether  it  was  in- 
fluenced by  these  or  more  tangible  arguments,  the  Legislature 
yielded.  On  March  17,  1787,  it  reincorporated  the  Bank  of 
North  America  for  a  term  of  fourteen  years  and  allowed  it  an 
increased  capital  of  $2,000,000  all  told.19  Thomas  Willing  still 
remained  president,  and  Fitzsimmons,  Nesbit  and  some  of  the 
other  original  directors  were  renamed  in  the  new  act.  Among 
the  stockholders,  then  or  later,  were  some  of  the  most  eminent 
judges ;  Justice  Yeates,  of  the  Supreme  Court  of  Pennsylva- 
nia, did  not  sit  in  a  subsequent  action  because  of  his  being  a 
stockholder.20 

In  the  very  year  that  the  Bank  of  North  America  was  re- 
chartered,  the  Federal  Constitutional  Convention  adopted  the 
well-known  clause  forbidding  any  State  to  pass  legislation  im- 
pairing the  obligation  of  a  contract.  Seven  years  later,  Wil- 
son and  other  noted  politicians  bribed  an  act  through  the 
Georgia  Legislature,  giving  four  companies  a  grant  of  about 

18  "  Statutes  at  Large  of  Pa.,  1785-1787,"  Vol.  XII:  57. 

18  Ibid.,  415-416. 

20  Bank  of  North  America  vs.  Fitzsimmons,  Binney's  Reports,  Su- 
preme Court  of  Pa.,  Vol.  Ill :  360.  This  bank  is  still  in  existence.  By 
a  special  act  of  Congress  it  is  the  only  national  bank  in  the  United 
States  not  compelled  to  use  the  word  national.  In  view  of  the  facts 
given  in  these  chapters  pertaining  to  the  origin  of  "the  Bank  of  North 
America,  it  is  extremely  interesting  to  find  that  bank  advertising  in  a. 
recent  number  of  the  Financier:  "A  Record  of  Progress  —  For  130 
years  this  institution  has  upheld  the  principles  of  sound  banking  and  its 
efficient  service  to  financial  institutions  throughout  the  country  has  con- 
tributed largely  to  its  success," 


156  HISTORY   OF   THE   SUPREME   COURT 

thirty-five  million  acres  of  public  land,  which  transaction  is 
fully  described  later  in  this  chapter.  When  Georgia  passed  an 
act  rescinding  the  grant,  the  Supreme  Court  of  the  United 
States  later  took  refuge  in  that  Constitutional  clause  forbid- 
ding the  impairment  of  the  obligation  of  a  contract,  and  de- 
clared the  rescinding  act  void.  Under  that  decision,  and  later 
decisions,  every  privilege  or  franchise  obtained  by  bribery  or 
other  fraud,  since  then,  has  been  perpetual  and  indefeasible 
in  law,  and  could  not  be  repealed. 

Commenting  upon  the  origin  of  the  Constitutional  clause  in 
question,  Hunter,  one  of  the  most  learned  attorneys  of  his 
time,  argued  in  the  noted  case  of  Sturges  vs.  Crowninshield : 
"  The  judges  of  the  State  Courts  and  of  this  Court  have  con- 
fessed that  there  is  in  these  words  '  impairing  the  obligation  of 
contracts '  an  inherent  obscurity.  .  .  .  They  are  not  taken 
from  the  English  common  law,  or  used  as  a  classical  or  tech- 
nical term  of  our  jurisprudence  in  any  book  of  authority.  No 
one  will  pretend  that  these  words  are  drawn  from  any  Eng- 
lish statute,  or  from  the  States  '  statutes  before  the  adoption  of 
the  Constitution.  Were  they,  then,  furnished  from  that  great 
treasury  and  reservoir  of  rational  jurisprudence,  the  Roman 
law?  We  are  inclined  to  believe  this.  The  tradition  is  that 
Mr.  Justice  Wilson,  who  was  a  member  of  the  Convention,  and 
a  Scottish  lawyer,  and  learned  in  the  civil  law,  was  the  author 
of  the  phrase."  21 

And,  according  to  a  letter  written  by  Gouverneur  Morris  to 
Timothy  Pickering,  in  1814,  he  (Gouverneur  Morris)  stated 
that  the  Constitution  "  was  written  by  the  fingers  which  write 
this  letter."  Morris  went  on  to  say  in  that  letter :  "  Having 
rejected  redundant  and  equivocal  terms,  I  believed  it  to  be  as 
clear  as  our  language  would  permit,  excepting,  nevertheless, 
a  part  of  what  related  to  the  judiciary.  On  that  subject  it 
became  necessary  to  select  phrases,  which,  expressing  my  own 

21  Wheaton's  Reports,  Supreme  Court  of  the  United  States,  Vol.  IV  • 
151. 


THE    SUPREME    COURT    UNDER   JOHN    JAY  157 

notions,  would  not  alarm  others."  Gouverneur  Morris  was  so 
active  in  drawing  up  the  final  document,  that  Madison  wrote 
of  him  that  "  the  finish  given  to  the  style  of  the  Constitution 
fairly  belongs  to  Mr.  Morris."  Considering  that  Wilson  and 
Gouverneur  Morris,  as  the  attorneys  for  the  Bank  of  North 
America,  had  jointly  made  that  noted  argument  before  the 
Pennsylvania  Legislature,  those  statements  are  of  high  impor- 
tance. 

The  Sequel  of  Wilson's  Bank  Scandal. 

But  who  was  to  determine  the  question  of  whether  legisla- 
tion impaired  the  obligation  of  contract,  and  was  therefore  un- 
constitutional ?  Self-evidently,  the  courts.  Quite  true,  the 
majority  of  the  Federal  Constitutional  Convention,  in  the  face 
of  the  popular  resentment  against  the  courts,  discreetly  re- 
frained from  voting  affirmatively  on  any  proposition  to  endow 
the  courts  with  power  to  set  aside  laws  as  unconstitutional. 
But  the  charge  of  the  impairment  of  an  obligation  of  contract 
presupposed,  and  carried  with  it,  an  action  at  law ;  such  a  con- 
test would  come  exclusively  within  the  jurisdiction  of  the 
courts.  It  would  be  the  courts,  and  not  the  executive  or  Con- 
gress that  would  pass  upon  the  controversy,  and  have  the 
final  decision  as  to  whether  legislation  was  unconstitutional  or 
not.  To  this  extent  the  adroit  leaders  in  the  convention,  who 
understood  perfectly  at  what  they  were  aiming,  succeeded  in 
deceiving,  not  only  many  of  the  delegates,  but  the  great  body 
of  the  people. 

With  this  clause  accepted,  no  explicit  provision  was  needed 
vesting  power  in  the  courts  to  declare  laws  unconstitutional. 
And  that  Wilson  and  his  class  colleagues  had  the  foresight  to 
discern  the  great  and  wide  latitude  allowed  the  courts  by  the 
acceptance  of  that  seemingly  harmless  clause,  is  shown  by  the 
large  number  of  laws  which,  under  it,  the  Supreme  Court  of 
the  United  States  has  declared  unconstitutional. 

To  understand  fully  the  serene  confidence  that  the  landhold- 


158  HISTORY  OF  THE   SUPREME  COURT 

ers  and  traders  of  the  Revolutionary  period  had  in  the  courts 
as  the  final  and  unchangeable  bulwark  of  their  interests,  and 
what  they  expected  from  the  judiciary,  it  is  only  necessary  to 
point  out  that  the  courts  during  the  Revolution  put  themselves 
above  law.  They  usurped  power  when  they  willed,  and  con- 
strued law  as  they  pleased.  Wilson  knew  that  many  of  their 
acts  were  sheer  usurpations,  for,  in  a  pamphlet,  he  defended 
usurpation.  When  he  caused  that  memorable  clause  of  his  to  be 
inserted  in  the  Constitution,  he  knew,  also,  that  the  usurpa- 
tions already  put  in  practice  would  serve  as  precedents  to  in- 
vite and  justify  further  usurpations. 

In  Chapter  III  we  have  already  described  how  the  Virginia 
court,  established  at  Vincennes  from  1779  to  1787,  usurped 
the  power  of  granting  lands,  and  then,  after  its  judges  had 
usurped  that  power,  clandestinely  granted  large  areas  of  land 
to  themselves. 

So  audaciously  did  they  make  a  grand  division  of  the  plunder 
among  themselves  that  they  took  only  the  most  superficial  pre- 
cautions to  conceal  their  malfeasances,  nor  do  they  seem  to  have 
been  proceeded  against  in  any  actions,  civil  or  criminal. 

"  Without  dwelling,"  reported  John  Bandelet  and  Nathaniel 
Ewing,  Government  Land  Commissioners  for^  the  district  of 
Vincennes,  to  Gallatin,  in  1812,  "  on  the  extraordinary  cir- 
cumstances of  the  above  recited  supposed  grants,  wherein  the 
members  of  a  court  of  justice  have  made  to  each  other  such 
unusual  donations,  and  appropriated  to  themselves  such  a  large 
and  valuable  part  of  the  country,  the  Commissioners  will  ob- 
serve that  the  State  of  Virginia  never  authorized  the  courts 
to  grant  lands.  .  .  ." 

In  the  same  document  (No.  1333,  Vol.  VII,  American  State 
Papers:  Public  Lands)  the  full  details  of  that  usurpation  are 
further  reproduced  in  a  report  of  Secretary  of  the  Treasury 
Levi  Woodbury,  on  February  16,  1835.  But  the  usurpations 
of  the  judiciary  extended  to  the  more  serious  and  sinister 
length  of  annulling  legislative  acts. 


THE    SUPREME    COURT    UNDER   JOHN    JAY  I$9 

Court  Usurpation  Already  Established. 

This  usurpation  Shirley  seeks  to  explain  thus :  "  In  the  dark 
days  which  preceded  the  Revolution,"  he  says,22  "  the  people  of 
the  Colonies  had  been  thoroughly  indoctrinated  with  the  idea 
that  the  acts  of  Parliament  of  which  they  complained  were 
unconstitutional,  and  therefore  void,  and  that,  in  consequence, 
they  were  justified  in  resisting  their  enforcement.  Judge  Wil- 
son, in  a  great  pamphlet,  had  urged  with  great  ingenuity  and 
force  that  it  was  the  right  and  the  duty  of  the  courts  to  set 
aside  those  acts.  This  view  was  supported  by  many  of  the 
most  eminent  politicians,  statesmen  and  jurists  of  that  day. 
This  doctrine  had  sunk  deep  into  the  popular  mind." 

But  it  was  not  against  acts  of  Parliament  that  the  courts 
presumed  to  usurp  this  power.  The  unpopularity  of  the  laws 
passed  by  Parliament  supplied  a  very  good  pretext  and  justi- 
fication for  the  assumption  of  a  power  directed,  not  against 
Parliament,  but  against  the  mass  of  the  people.  The  fact  that 
all  the  judges  were  royal  officials,  and  that,  when  the  Revolution 
broke  out,  only  a  few  of  those  judges  supported  the  movement 
for  political  independence  (and  they  only  under  virtual  com- 
pulsion) shows  Shirley  to  have  been  in  complete  error  on  this 
point.  Certainly  judges  drawing  pay  from  the  crown,  were 
not  likely  to  forfeit  their  positions  and  salary  by  declaring  the 
laws  of  the  crown  null  and  void. 

The  usurped  power  of  declaring  laws  void  was  a  power  first 
exercised  by  the  courts  at  precisely  that  time  during  the  Revo- 
lution when  the  insurrectionary  movements  of  the  people  were 
manifesting  themselves.  These  movements  had  for  their  object 
an  armed  protest  against  the  old  mediaeval  laws  still  in  force 
and  being  reenacted,  against  the  extortions  of  the  landholders 
and  merchants,  and  against  the  schemes  and  political  and 
financial  lootings  so  shamelessly  carried  on  by  the  members  of 
the  governing  class.  The  uprisings,  or  rather  threatening 

22 "Dartmouth  College  Causes"  (Edition  of  1879)  :  p.  390. 


l6o  HISTORY  OF  THE   SUPREME   COURT 

upheavals,  forced  legislatures,  in  some  instances,  to  pass  laws 
of  varying  remedial  qualities.  The  courts,  representing  the  in- 
terests of  the  landlords,  and  composed  of  landowners  or  their 
retainers,  came  quickly  to  the  rescue  of  their  class. 

That  this  usurpation  of  power  was  exercised  against  the 
legislatures  is  admitted  by  Shirley  in  his  next  paragraph. 
"  The  judges  in  Rhode  Island,"  he  wrote,  "  had  set  aside  an 
act  of  the  Legislature  as  unconstitutional.  The  same  is  true 
of  New  Jersey.  In  1788  and  1793,  the  Court  of  Appeals 
in  Virginia  had  done  the  same  thing.  The  power  of  the  highest 
court  to  set  aside  such  acts  was  recognized  in  New  Hampshire 
soon  after  the  adoption  of  the  written  Constitution  of  1784. 
From  1790  to  1799,  they  were  repeatedly  declared  void  by  the 
highest  court,  and  sometimes  by  inferior  tribunals."  23 

The  additional  fact  that  James  Wilson,  the  author  of  the 
clause  in  the  Constitution  prohibiting  any  State  legislation 
impairing  the  obligation  of  a  contract,  had  written  a  pamphlet 
urging  the  right  of  the  courts  to  declare  laws  invalid,  is  of  the 
greatest  significance. 

Hamilton's  Banking  Interests. 

Undoubtedly  Wilson  with  his  Bank  of  North  America  ex- 
perience fresh  in  mind,  had  a  valuable  coadjutor  in  Alexander 
Hamilton,  whose  speeches  and  writings  prove  that  he  fully 
grasped  the  overshadowing  importance  of  lodging  the  real 
power  in  the  judiciary.  Hamilton  had  his  own  banking  and 
other  interests,  not  to  speak  of  the  vast  interests  of  his  rela- 
tives, connections  and  associates,  and  those  of  the  whole  class 
which  he  so  brilliantly  represented,  to  protect  against  the  pos- 
sibility of  hostile  legislation,  then  so  imminent  because  of  the 
bitter  popular  demonstrations. 

The  profits  of  the  Bank  of  North  America  were  so  great 
that  Hamilton  and  his  associates  decided  to  start  a  bank  in 

23  "  Dartmouth  College  Causes  " :  390. 


THE    SUPREME    COURT    UNDER   JOHN    JAY  l6l 

New  York  City.  In  1784,  they  organized  the  first  banking 
company  in  New  York  State  with  a  capital  of  $500,000 ;  Ham- 
ilton personally  drew  up  the  articles  of  copartnership. 

But  the  people  had  been  so  badly  cheated  in  depreciated 
paper  currency,  that  the  Legislature  was  afraid  to  charter 
banks.  "  A  memorial,"  says  John  C.  Hamilton,  "  to  incor- 
porate the  bank  of  which  the  constitution  had  been  framed 
by  Hamilton,  was  presented  to  the  Legislature  early  in  1784, 
but  so  prevalent  was  the  jealousy  of  moneyed  influence  that 
it  was  compelled  to  conduct  it  affairs  during  six  years  without 
corporate  immunities."  24  So  anxious  was  Hamilton  to  start  his 
bank,  that  he  opened  it  even  before  he  had  obtained  lawful 
authority,  and  without  waiting  for  those  legislative  favors  by 
which  directors  were  individually  exempted  from  being  sued. 
From  1784  to  1788  he,  personally,  was  a  director; 25  and  up  to 
the  very  day  of  his  death  he  controlled  that  institution.  It 
held  a  monopoly  of  banking  powers  in  New  York,  and,  like  the 
Bank  of  North  America,  it  was  of  the  greatest  service  in  facili- 
tating great  land  speculations,  and  exercising  pressure  upon 
merchants  in  elections. 

Not  until  March  21,  1791,  was  Hamilton  able  to  secure  a 
charter  from  the  New  York  Legislature.  How,  it  may  be 
fairly  asked,  in  view  of  later  developments,  did  he  get  it? 
Was  it  given  as  a  partisan  present  by  his  Federalist  associates? 
Or  was  some  stronger  and  more  metallic  inducement  necessary 
to  influence  the  legislators  to  defy  public  opposition  —  induce- 
ments such  as  Aaron  Burr,  it  was  revealed,  gave  in  1799  when 
he  obtained  Ihe  charter  for  the  Manhattan  Bank,  and  induce- 
ments such  as  others  gave  later  in  getting  charters  for  the 
Mercantile  Bank,  the  Bank  of  America  and  other  banks  ?  This 

24  Hammond's  "  Political  History  of  the  State  of  New  York,"  Vol. 

1 :  323- 

25  "  A  History  of  the  Bank  of  New  York,  1784-1884  " :  122.    Hamil- 
ton, as  Secretary  of  the  Treasury,  dealt  extensively   with  the   Dutch 
bankers,  Willinck,  the  same  to  whom  Robert  Morris  sold  3,000,000  acres 
of  New  York  land. 


l62  HISTORY   OF   THE   SUPREME   COURT 

we  may  suspect,  but  do  not  know.  But  we  do  learn  that  in 
1790,  a  year  after  his  becoming  Secretary  of  the  Treasury, 
Hamilton  made  the  Bank  of  New  York  the  agent  for  the  sale 
of  200,000  guilders,20  and  that  when  he  and  Morris  established 
the  Bank  of  the  United  States,  it  was  evidently  Hamilton's 
plan  to  make  the  Bank  of  New  York  a  branch  factor  of  that  in- 
stitution ;  between  the  two  banks,  however,  "  a  friendly  arrange- 
ment was  made."  "  This  matter  of  the  chartering  of  banks 
deserves  to  be  kept  constantly  in  mind ;  in  its  proper  place  we 
shall  have  to  make  a  further  exposition  of  bank  charters,  and 
the  close  connection  existing  between  the  particular  interests 
that  certain  other  renowned  Justices  of  the  Supreme  Court  of 
the  United  States  had  in  them,  and  some  notable  decisions  fol- 
lowing. 

James  Wilson's  Bank  of  North  America  enterprise,  his  suc- 
cess in  getting  it  rechartered  in  the  teeth  of  the  most  violent 
popular  antagonism,  and  the  great  service  he  rendered  the 
propertied  class  both  in  the  Federal  Constitutional  Convention 
and  in  the  Pennsylvania  Convention  made  him  a  man  of  mark. 
But,  notable  as  were  Wilson's  banking  activities,  1  is  land  oper- 
ations were  far  more  extensive,  and  were  considered  more 
scandalous.  Before,  however,  describing  these,  it  is  advisa- 
ble to  give  an  additional  series  of  facts  as  to  the  continued 
and  widespread  seizure  of  land,  under  color  of  law,  then  in 
unmitigated  process.  Plundering  of  the  public  domain  was 
the  recognized  order  of  the  day. 

The  associated  politicians  and  capitalists  were  exercising 
the  freest  hand  in  appropriating  as  much  of  the  public  domain 
as  they  wanted.  The  continued  alienation  of  the  State  lands, 
and  the  despoilment  of  the  National  lands  were  carried  on  at 
the  same  time,  and  by  politicians  and  capitalists  of  both  political 
parties.  Nearly  all  of  Chief  Justice  Jay's  relatives,  intimate 
friends  and  business  connections  were  deep  ii?  these  legalized 
seizures ;  Associate  Justice  James  Wilson  was  particularly  con- 

28  "  A  History  of  the  Bank  of  New  York,"  etc.,  39.         27  Ibid.,  42. 


THE   SUPREME   COURT    UNDER   JOHN    JAY  163 

spicuous,  as  were  Robert  Morris,  Hamilton,  Fitzsimmons, 
Jonathan  Dayton,  Aaron  Burr  and  a  large  number  of  other 
leading  lights,  not  omitting  Washington  himself. 

The  "  Sufferers  "  Get  a  Donation  of  500,000  Acres. 

First  the  appropriation  of  the  lands  owned  by  the  various 
States  will  be  considered.  The  State  of  Connecticut  held  a 
large  area,  called  the  Western  Reserve,  in  Ohio.  In  May,  1792, 
the  Connecticut  Legislature  passed  an  act,  under  the  pretence  of 
making  indemnity  for  losses  caused  by  the  incursions  of  the 
British  army  into  various  Connecticut  towns.  By  this  act,  and 
another  act  passed  in  May,  1795,  a  tract  of  500,000  acres 
of  land  in  Trumbull  County,  Ohio,  fronting  Lake  Erie,  were 
conveyed  to  Thaddeus  Burr  and  others.28 

Another  act  was  passed  in  October,  1796.  It  was  entitled, 
"  An  Act  for  Incorporating  the  Proprietors  of  the  Half  Mil- 
lion Acres  of  Land  lying  south  of  Lake  Erie."  This  act  created 
the  recipients  as  a  corporation,  and  provided  that  they  and 
their  heirs  should  have  succession.  The  next  clause  made  pro- 
vision that  the  Proprietors  should  have  agents  in  meetings  to 
represent  them ;  the  regulations  prescribed  show  clearly  that 
the  act  was  designed  to  benefit  men  of  wealth,  and  not  the 
poor  who  had  suffered.  Proprietors  in  those  towns  whose  al- 
lowed losses  were  £10,000  or  less,  could  send  one  agent ;  those 
whose  losses  ranged  from  £10,000  to  £20,000  could  send  two 
agents ;  those  with  a  loss  from  £20,000  to  £30,000  could  send 
three ;  and  so  on  in  the  same  proportion.  The  voting  in  the 
meetings  for  the  selection  of  agents  was  thus  arranged  by  this 
law :  Those  whose  losses  were  less  than  £100  should  have 
one  vote ;  those  having  lost  £100  to  £200,  two  votes ;  those  with 
losses  from  £200  to  £300,  three  votes,  and  so  on  up  the  list. 
But  no  single  loss  was  to  give  more  than  ten  votes.29  Another 

28  "  Connecticut  Laws:  Public  Statute  Laws"  (Edition  of  1808),  Vol. 
1 :  456-457. 

451-455- 


164  HISTORY  OF  THE  SUPREME   COURT 

act,  along  the  same  lines,  passed  in  May,  1797,  allowed  deeds 
of  conveyance,  for  which  no  provision  was  made  in  the  origi- 
nal act.30  It  became  necessary,  also,  to  get  an  act  of  incorpora- 
tion from  the  Ohio  Legislature;  and  this  was  obtained  in  1803. 
This  act  incorporated  "  the  owners  and  proprietors  of  half 
million  acres  of  land  lying  south  of  Lake  Erie,  in  the  county 
of  Trumbull."  31  The  act  pathetically  called  the  land  "  Suf- 
ferers Land,"  although  the  company  was  composed  very  largely 
of  capitalists  and  politicians  who  had  bought  up  claims  of 
losses  on  speculation,  and  had  often  fraudulently  magnified 
them.  The  Ohio  lands  donated  comprised  all  that  valuable 
section  of  which  the  city  of  Cleveland  is  now  the  seat  and  cen- 
ter. 

A  Few  Capitalists  Get  5,542,000  Acres  in  New  York. 

After  the  Revolution,  the  State  of  New  York  owned,  within 
its  limits,  more  than  seven  million  acres  of  what  were  then 
called  "  wild  and  unappropriated  lands."  In  1791,  the  New 
York  Legislature  enacted  a  law,  authorizing  the  State  Com- 
missioners of  the  Land  Office  to  dispose  of  these  lands  in 
such  parcels  and  on  such  terms  and  in  such  a  manner  as  they 
should  judge  most  conducive  to  the  interest  of  the  public. 
The  law  thus  virtually  allowed  the  Commissioners  to  do  as 
they  pleased ;  Hammond  says  that  the  act  was  passed  by  con- 
sent of  both  political  parties.32  The  Commissioners  of  the 
Land  Office  consisted  of  the  Governor  (then  George  Clinton), 
the  Secretary  of  State,  and  the  Attorney-General  (then  Aaron 
Burr),  and  the  State  Treasurer  and  the  State  Auditor. 

These  officials  at  once  proceeded  to  do  business.  In  the  same 
year —  1791  — they  sold  the  enormous  area  of  5,542,173  acres 
of  land  for  the  trifling  sum  of  $1,030,432.  This  fact  of  itself 

30  "  Connecticut  Laws,"  etc.,  456-457. 

31  "Ohio  Laws,  1803,"  Chap.  XXIX:  pp.  106-114. 

32  Hammond's  "  Political  History  of  the  State  of  New  York,"  Vol 
I:  326. 


THE   SUPREME    COURT    UNDER   JOHN    JAY  165 

caused  a  considerable  public  scandal ;  but  the  one  circumstance 
looked  upon  as  particularly  and  inexplicably  flagrant  was  that 
to  one  individual  —  Alexander  McComb  —  they  disposed  of 
a  vast  tract  of  3,635,200  acres  for  the  ridiculous  price  of  eight 
pence  an  acre.  Nor  was  this  slight  sum  to  be  paid  down; 
McComb  was  allowed  to  pay  it  in  five  installments,  without 
interest  and  subject  to  a  discount  of  six  per  cent,  on  payment 
in  advance,  which  still  further  reduced  the  actual  price.33 

At  the  same  time  other  large  tracts  were  sold  to  other  cap- 
italists, among  whom  were  the  Roosevelts,  James  Caldwell, 
McGregor  and  others.  These  sales,  however,  were  made  at 
a  higher  rate  than  the  sale  to  McComb ;  some  of  the  lands  were 
sold  at  about  three  shillings  an  acre,  others  for  two  shillings 
six  pence,  and  some  for  one  shilling  an  acre.  Hammond  re- 
lates that  these  sales  were  widely  criticised  as  buil'ding  up  a 
land  monopoly,  and  that  it  was  urged  as  a  suspicious  matter 
that  three  and  a  half  million  acres  of  land  were  sold  to  Mc- 
Comb at  eight  pence  an  acre,  while,  on  the  other  hand,  five  hun- 
dred thousand  acres  were  sold  by  the  same  Commissioners,  and 
at  about  the  same  time,  to  John  and  Nicholas  Roosevelt  for  three 
shillings  and  a  penny  an  acre.  In  the  debate  in  the  Legislature 
it  was  insinuated  that  Clinton,  Burr  and  their  friends  were 
secretly  interested  in  the  McComb  purchase,  which  accusation 
McComb  denied.34  Great  profits  were  made  by  these  specula- 
tors in  disposing  of  the  land  at  high  prices  to  actual  settlers. 

The  Holland  Company. 

It  is  necessary  now  to  revert  to  the  operations  of  the  Hol- 
land Company,  in  the  background  of  which  we  have  seen  Ham- 
ilton advancing  John  B.  Church's  money  to  Robert  Morris. 
Presently  Associate  Justice  James  Wilson  will  enter. 

Morris,  as  will  be  recalled,  sold  more  than  3,000,000 
acres  of  his  4,000,000  acres  in  New  York  State  to  eleven 

33  Davis'  "  Memoirs  of  Burr,"  Vol.  I:  326. 

34  Hammond,  Vol.  1 :  58. 


l66  HISTORY   OF  THE   SUPREME   COURT 

Dutch  bankers  and  other  capitalists  incorporating  themselves 
as  the  Holland  Company.  It  will  also  be  remembered  that 
Jay's  relatives,  the  Livingstons,  were  among  the  group  of  cap- 
italists interested  in  the  fraudulent  Phelps  and  Gorhani  pur- 
chase of  2,600,000  acres  in  New  York  State.  When  Morris' 
project  of  conveying  3,000,000  acres  of  land  to  a  coterie 
of  foreign  capitalists  became  known,  the  wildest  popular  ex- 
citement resulted.  The  argument  was  advanced  (and  sound 
law  it  was,  too),  that  property  could  not  be  conveyed  to  aliens 
or  held  by  them.  Morris,  Wilson,  the  Livingstons  and  others, 
and  particularly  Jay,  as  we  shall  see,  had  long  had  the  best  of 
interested  reasons  for  desiring  the  effacement  of  any  such 
prohibitive  law.  Pressure  was  brought  to  bear  upon  the  Leg- 
islature, and  on  April  n,  1796,  an  act  was  passed  authorizing 
the  Dutch*  bankers,  Willinck,  and  other  aliens  and  their  de- 
scendants to  hold  property. 

Both  Burr  and  Hamilton  were  engaged  in  extensive  land 
grabbing,  Hamilton  in  many  different  directions.  Both  of 
these  eminent  patriots  were,  according  to  Turner,35  "  contrac- 
tors for  lands  west  of  the  Genesee  River;  the  former  [Burr] 
for  a  tract  upon  the  Holland  Purchase."  Burr,  says  Turner, 
had  made  a  contract  for  the  purchase  of  the  tract,  at  twelve 
shillings  per  acre,  at  an  early  period  of  the  Holland  company's 
ownership.  Turner  quotes  in  full  a  letter  written  to  The- 
>philus  Cazenove,  first  General  Agent  of  the  Holland  Company, 
in  which  Burr  says  that  "  it  appears  that  the  Tonawanta  Bay 
falls  within  my  tract"  on  Lake  Ontario.  Burr's  transaction 
with  the  Holland  Company,  Turner  continues,  "  was  blended 
with  other  transactions,  and  eventually  abandoned.  But  out  of 
it  had  originated  a  bond  for  $20,000  which  was  given  up. 
The  surrendering  of  the  bond  gave  rise  to  reports  that  Col. 
Burr  had  been  bribed  by  agents  of  the  Holland  Company  to 
favor  the  passage  of  the  bill  allowing  aliens  to  hold  lands. 
Burr  held  John  B.  Church  responsible  for  the  report,"  and 

85  "History  of  the  Holland  Purchase"  (Edition  of  1850)  :  418. 


THE   SUPREME    COURT    UNDER   JOHN    JAY  167 

challenged  him  to  a  duel,  the  result  of  which  was  ineffectual. 
Turner  concludes  by  saying  that  Church  apologized.36  Perhaps 
Church  was  too  hasty  in  accusing  without  being  able  to  get 
the  legal  proof.  Certainly,  direct  accusations  of  bribery  were 
not  wanting  against  Burr  when  he  persuaded  the  Legislature 
to  pass  his  artful  Manhattan  Bank  bill,  in  1799;  at  least  ten 
legislators,  it  appeared,37  knew  of  the  real  character  of  the  bill 
which  was  ostensibly  passed  to  provide  New  York  City  with 
pure  water,  but  which  contained  a  covert  clause  conferring 
banking  powers  on  the  Manhattan  Company. 

In  the  Pennsylvania  activities  of  the  Holland  Company, 
James  Wilson  was  openly  and  conspicuously  interested.  So, 
indirectly,  was  Hamilton,  working  through  John  B.  Church 
and  Tench  Coxe.  As  Assistant  Secretary  of  the  Treasury 
under  Hamilton, 38  Coxe  seems  to  have  been  very  close  to  Ham- 
ilton. 

Justice  Wilson's  Participation. 

In  1792,  the  State  of  Pennsylvania  received  a  formal  grant 
from  the  United  States  of  what  was  called  the  Erie  Triangle, 
comprising  202,187  acres  in  the  northwestern  corner  of  Penn- 
sylvania, bordering  on  Lake  Erie.  Under  the  Pennsylvania 
act  of  1786,  opening  all  lands  to  settlers,  the  State  officials  be- 
gan to  sell  it. 

But  they  made  no  pretence  of  disposing  of  it  to  actual  set- 
tlers, despite  the  law  requiring  that  it  be  sold  to  actual  settlers, 
and  that  it  be  settled  within  two  years.  Through  'dummies, 
and  with  the  full  connivance  of  the  State  officials,  principally 
Comptroller-General  John  Nicholson,  the  Holland  Company, 
in  1792-1793,  bought  eleven  hundred  and  sixty-two  tracts  of 

30  Ibid.,  419.  Hamilton  and  Burr  were  rivals  in  more  than  the  po- 
litical respect.  Was  it  Hamilton's  aim  to  discredit  Burr  through 
Church  ? 

37  See  statement  of  facts  in   Spencer  vs.   Southwick,  Johnson's  Re- 
ports (N.  Y.),  Vol.  IX:  314. 

38  "  American  State  Papers  :  Miscellaneous,"  Vol.  1 :  57, 


168  HISTORY    OF   THE    SUPREME    COURT 

four  hundred  acres  each,  paying  at  the  rate  of  £10,  ten  shillings 
per  hundred  acres ;  from  those  1,162  tracts,  386  tracts  were  later 
deducted  by  reason  of  prior  settlements,  bounties  and  on  other 
grounds.30  The  headquarters  of  the  Holland  Company  was 
at  what  is  now  Meadville.  Of  about  $380,000  that  the  Hol- 
land Company  professed  to  have  expended  for  improvements, 
settlements,  etc.,  Judge  James  Wilson  was  credited  with  con- 
tributing the  sum  of  $222,071.10  in  all;40  he  must  have  been 
an  uncommonly  rich  man  to  have  been  able  personally  to  put 
in  so  large  an  amount;  no  doubt  his  Bank  of  North  America 
supplied  him  with  part  of  the  funds. 

Had  it  not  been  for  the  courts,  however,  especially  the  Su- 
preme Court  of  the  United  States,  this  great  fraudulent  opera- 
tion, and  similar  seizures  in  Pennsylvania,  would  never  have 
succeeded.  In  a  case  that  came  up  before  Judge  Huston,  in 
the  Supreme  Court  of  Pennsylvania,  thirty-eight  years  later, 
involving  land  in  western  Pennsylvania,  Huston  gave  a  very 
comprehensive  survey  of  the  land  frauds  of  the  time  here  dealt 
with. 

"  At  one  period  of  our  history,"  wrote  Judge  Huston,  in 
delivering  the  court's  opinion,  "  from  1784  till  December,  1786, 
our  then  Supreme  Court  made  some  decisions  which  alarmed 
everybody ;  and  an  act  of  Assembly  was  passed,  declaring  all 
warrants  issuing  for  lands  on  which  a  settlement  had  been 
made,  except  to  the  settler  or  his  legal  representative,  should 
be  null  and  void.  And  soon  after,  the  courts  decided  that  all 
such  warrants  which  had  issued  for  land  occupied  by  a  settler 
were  void,  The  same  thing  had  been  decided,  and  was  the 
settled  law,  before  the  Revolution." 41  Judge  Huston  then 
cited  from  a  decision  of  Judge  Yeates  *2  in  which  Yeates  wrote 
that  for  some  years  after  the  Revolution  the  sentiments  of 

39  See,  Case  of  Commonwealth  of  Pa.  vs.  Tench  Coxe,  Dallas'  Re- 
ports (Supreme  Court  of  Pa.),  Vol.  IV:  175. 

40  Ibid.    This  is  the  exact  amount  stated  in  the  court  record  in  a  suit 
brought  by  Pennsylvania  in  1800,  two  years  after  Wilson's  death. 

41  Case  of  Campbell  vs.  Galbreath,  Watts'  Reports,  Vol.  1 :  70,  etc, 

42  Lessee  of  Bonnet  vs.  Devebaugh,  III  Binney's  Reports, 


THE   SUPREME    COURT    UNDER   JOHN    JAY  169 

some  of  the  judges  of  the  Supreme  Court  of  Pennsylvania 
"  were  unfriendly  to  settlers  and  improvers,"  but  that  a  change 
of  opinion  took  place  about  the  year  1793.  The  precise  nature 
of  this  change  Judge  Huston  did  not  state. 

Then,  going  on  to  describe  at  length  the  fraudulent  processes 
by  which,  through  fictitious  settlers,  large  speculators  obtained 
the  land,  and  the  prolonged  scenes  of  riot  and  bloodshed  en-- 
suing in  conflicts  between  pretended  and  actual  settlers  up 
to  the  year  1802,  Judge  Huston  continued,  "  The  lands  west 
of  the  Alleghany  were  taken  upon  warrants  paid  for  by  Judge 
Wilson,  John  Nicholson,  Robert  Morris,  and  many  others, 
none  of  whom  were  ever  in  or  near  that  country,  but  they  had 
agents  who  procured  the  surveys,  and  paid  for  them  money 
furnished  by  the  owner.  .  .  ."  43  Further  facts  concerning 
the  Holland  Company  we  shall  be  under  the  necessity  of  nar- 
rating later  in  their  appropriate  place  in  relation  to  a  certain 
decision  of  Chief  Justice  Marshall. 

Wilson's  land  operations  were  by  no  means  confined  to  any 
particular  section  of  Pennsylvania.  His  gathering  in  of  land 
extended  throughout  that  State;  many  of  the  most  valuable 
coal  tracts  in  Pennsylvania  derive  title  from  his  ownership. 
He  owned  large  areas  of  coal  land  in  Huntington  and  North- 
ampton Counties,  Pennsylvania.  We  find  from  the  court  rec- 
ords that,  in  consideration  of  debts  that  he  owed  to  Benjamin 
R.  Morgan  of  Philadelphia,  and  General  Henry  Lee  of  Vir- 
ginia, Justice  Wilson,  on  August  20,  1796,  made  a  deed  to  them 
of  all  his  real  estate  in  those  counties,  which  deed  was  followed 
by  a  trail  of  litigation  lasting  for  more  than  three-quarters 
of  a  century.44  At  the  same  time,  Tench  Coxe  and  John  B. 
Church  were  jointly  acquiring  extensive  tracts  of  timber  and 
coal  lands  in  Luzerne  County  and  in  other  counties;  in  1795 
they  made  a  division  of  their  holdings,  part  going  to  Coxe,  and 

43  Ibid.,  105. 

44  See,   Case  of   Alleghany   Railroad   and    Coal   Company  vs.   Casey, 
Pennsylvania  State  Reports,  Vol.  79 :  84-85, 


170  HISTORY   OF   THE    SUPREME    COURT 

part  to  Church ; 45  Hamilton  must  have  been  acting  for  Church, 
who  was  not  in  the  United  States  at  that  time. 

The  scandalous  methods  by  which  these  valuable  lands  had 
been  obtained,  the  accompanying  violence  and  trickery  and 
the  public  bitterness  induced  the  Legislature  to  pass  an  act, 
on  April  n,  1795,  "to  prevent  intrusions  on  lands  within  the 
counties  of  Northampton,  Northumberland  and  Luzerne." 
Section  II  of  this  act  provided  that  every  person  who  combined 
or  conspired  to  convey,  possess  or  settle  any  lands  under  half- 
share  rights  or  pretended  titles,  should,  for  each  offense,  pay 
$500  to  $i,poo  fine,  and  should  be  subject  to  imprisonment  at 
hard  labor  for  a  term  not  exceeding  eighteen  months.  If  any 
State  officer  were  resisted  in  ejectment  proceedings,  he  was  em- 
powered to  call  out  the  militia.40 

But  the  very  courts  expected  to  enforce  this  act,  civilly  and 
criminally,  were  then  composed  of  judges  who  were  either  in- 
terested or  subservient;  and  the  act  was  almost  entirely  di- 
verted, it  is  quite  clear,  and  used  as  a  weapon  against  actual 
settlers.  The  land  speculators  had  seen  to  it  that  their  law  • 
yers  were  put  on  the  State  benches  equally  as  well  as  upon 
the  bench  of  the  Supreme  Court  of  the  United  States.47 
This  fact  was  well  known;  and  at  a  time  when  the  Pennsyl- 
vania Legislature  was  kept  busy  with  impeachment  proceed- 
ings against  judges  and  officials,  the  State  judges  who  had 
been  counsel  for  the  Holland  Company  preferred  frankly  to 
state  the  fact,  and  not  sit  in  cases  affecting  it,  rather  than  in- 
flame public  excitement,  already  great,  and  risk  impeachment. 
The  fact,  however,  that  various  kinds  of  actions,  brought  long 
after  in  the  courts,  were  against  the  heirs,  legatees  or  the  as- 

<r>  See,  Case  of  Steiner  and  Newbold  vs.  Coxe,  IV  Pa.  State  Reports, 
14. 

40  Carey  and  Bioren's  Pa.  Laws,  Vol.  V :  72. 

4^Thus,  Judge  Breckenridge  of  the  Pa.  Supreme  Court  had  been, 
as  an  attorney,  counsel  for  the  Holland  Company  (IV  Dallas'  Reports, 
196).  In  the  case  of  the  Commonwealth  of  Pa.  vs.  Coxe  he  was  dis- 
qualified from  sitting,  having,  as  he  inserted  in  the  records,  been 
counsel  for  the  Holland  Company. 


THE    SUPREME    COURT    UNDER   JOHN    JAY  171 

signees  of  Wilson,  Coxe,  Nicholson  and  others  shows  that 
these  original  appropriators  were  eventually  successful  in 
getting  original  title,  by  reason,  as  will  be  seen,  of  decisions  of 
the  Supreme  Court  of  the  United  States. 

Wilson's  Illinois  and  Wabash  Company. 

The  land  transactions,  individually  or  jointly,  of  Robert  Mor- 
ris, James  Wilson,  John  Nicholson  and  their  associates  or 
connections  were,  indeed,  phenomenally  extensive  and  ubi- 
quitous. One  of  Wilson's  enterprises,  however,  met  -with  fail- 
ure; its  character  was  so  very  shady  that  Congress,  many  of 
the  conspicuous  members  of  which  were  promoting  that  scheme 
and  other  great  land  grabs,  dared  not  finally  sanction  it.  This 
particular  project  of  Wilson's  was  the  Illinois  and  Wabash 
Land  Company ;  the  nature  of  this  company  was  thus  particu- 
larly described  by  President  Jefferson  : 48 

"  During  the  regal  government  two  companies,  called  the 
Loyal  and  the  Ohio  Company,  had  obtained  grants  from  the 
Crown  for  800,000  or  1,000,000  acres  of  land  each  on  the  Ohio, 
on  condition  of  settling  them  in  a  given  number  of  years.  They 
surveyed  some  and  settled  them;  but  the  war  of  1755  came 
on  and  broke  up  the  settlements.  After  it  was  over  they 
petitioned  for  a  renewal.  Four  other  large  companies  then 
formed  themselves,  called  the  Mississippi,  the  Illinois,  the  Wa- 
bash and  the  Indiana  Companies,  each  praying  for  immense 
quantities  of  land,  some  amounting  to  200  miles  square ;  so 
that  they  proposed  to  cover  the  whole  country  north  between 
the  Ohio  and  the  Mississippi  and  a  great  portion  of  what  is 
south. 

"  All  of  these  petitions  were  depending,  without  any  answer 
whatever  from  the  Crown,  when  the  Revolutionary  War  broke 
out.  The  petitioners  had  associated  to  themselves  some  of 
the  nobility  of  England  and  most  of  the  characters  in  America 

48  In  a  letter  dated  Washington,  March  20,  1801,  to  M.  de  Reyneval, 


172  HISTORY   OF   THE   SUPREME   COURT 

of  great  influence.  When  Congress  assumed  the  Government, 
they  took  some  of  their  body  in  as  partners  to  obtain  their 
influence;  and  I  remember  to  have  heard  at  the  time  that  one 
of  them  took  Mr.  Girard  as  a  partner,  expecting  by  that  to 
obtain  the  influence  of  the  French  court  to  obtain  grants  of 
those  lands  which  they  had  not  been  able  to  obtain  from  the 
British  government.  All  these  lands  were  within  the  limits  of 
Virginia." 

This,  however,  is  only  a  general,  incomplete  description ;  the 
other  necessary  details  will  be  here  supplied.  Both  the  British 
and  the  Continental  Governments  had  refused  to  recognize  the 
claims  of  the  Illinois  and  Wabash  companies.  After  the  or- 
ganization of  the  National  Government,  the  Illinois  and  the 
Wabash  companies  were  fused  into  one  corporation,  and  James 
Wilson  became  its  president.40  On  December  17,  1791,  Justice 
Wilson,  William  Smith  and  John  Shee  submitted  an  elaborate 
petition  to  the  United  States  Senate,  praying  confirmation  of 
their  claims.  They  represented  that  during  the  years  1773  and 
1775  William  Murray,  an  Illinois  merchant,  and  specified  others 
composing  the  Illinois  Company,  and  Lord  Dunmore  and  vari- 
ous British  and  American  lawyers  and  merchants  comprising 
the  Wabash  Company,  had  bought  from  the  Indian  tribes  the 
great  stretch  of  territory  claimed  on  the  Illinois  and  Wabash 
rivers.50  In  the  petition  neither  the  exact  extent  of  the  tract 
was  mentioned,  nor  specifically  what  the  Indians  had  been 
paid. 

Despite  the  fact  that  this  claim  obviously  could  not  hold  in 
law  because,  even  if  an  actual  purchase  had  been  made  (which 
was  doubtful),  it  was  in  contravention  of  King  George's  procla- 

<»  "American  State  Papers:  Public  Lands,"  Vol.  I:  27.  (Docs.  Nos. 
ii  and  12.) 

50  Ibid.  As  nearly  as  can  be  made  out  from  the  records,  one  tract 
extended  about  forty  by  thirty  leagues,  and  the  other  of  the  same  di- 
mensions, between  the  mouth  of  the  White  River  and  the  mouth  of  the 
Wabash.  The  promoters  claimed  to  have  given  the  Indians  large  quan- 
tities of  strouds,  blankets,  guns,  flour,  beads,  etc.  They  had  tried  in 
1781  to  get  the  Continental  Congress  to  confirm  their  claim,  but  were 
unsuccessful. — "  American  State  Papers  :  Public  Lands,"  Vol.  II :  253. 


THE   SUPREME    COURT    UNDER   JOHN    JAY  173 

mation  of  1763,  forbidding  purchases  from  the  Indians,  Jus- 
tice Wilson,  acting  for  the  company,  made  this  proposition  to 
the  Senate :  "  That,  however  clear  the  claim  of  the  company 
to  the  whole  of  their  purchase  may  be,  they  hesitate  not  to 
express  their  willingness  and  desire  that  a  reasonable  com- 
promise upon  the  subject  may  take  place  between  the  United 
States  and  them."  The  company  modestly  agreed  to  surrender 
to  the  United  States  all  the  lands  claimed,  on  condition  that  the 
Government  reconvey  to  the  company  one-fourth  of  the  lands.51 

That  an  offer  of  this  character  should  have  been  urged  was 
suggestive  of  the  crass  effrontery  of  its  proposers. 

The  Senate  Committee  on  Public  Lands  balked  at  this  ex- 
traordinary proposal;  it  reported  that  the  petitioners  held  no 
legal  title  to  the  lands,  and  it  declined  the  proposition  in  toto.52 
On  the  other  hand,  the  fullest  encouragement  was  met  with  in 
the  House  in  which  the  notorious  Jonathan  Dayton,  himself 
putting  through  great  land  jobbery,  was,  with  others  of  his 
kind,  all  powerful.  The  House  Committee  on  Public  Lands 
reported  that  the  company's  Indian  deeds  were  good  and  valid, 
and  it  was  recommended  that  the  United  States  should  agree 
to  the  proposal.83 

As  casting  a  piercing  ray  of  light  upon  the  methods  used  in 
Congress  during  this  time,  the  great  scandal  arising  from  the 
bribery  of  members  by  Robert  Randall  to  grant  a  twenty-two 
million  acre  claim,  may  be  briefly  referred  to. 

Three  members  of  the  House,  Smith  of  South  Carolina, 
Murray  of  Maryland  and  Giles  of  Virginia,  testified,  in  De- 
cember, 1795,  that  Randall  had  made  overtures  to  get  their 
support  for  a  bill  granting  for  a  nominal  sum  a  huge  tract  of 
land  containing  from  eighteen  to  twenty  million  acres  border- 
ing on  Lakes  Erie,  Huron  and  Michigan.  Other  members  of 
the  House  corroborated  the  charges  against  Randall.  It  was 
brought  out  that  Randall  told  members  of  the  House  that  he 
already  had  thirty  or  forty  members  pledged  in  support  of 

01  Ibid. 


174  HISTORY  OF  THE   SUPREME   COURT 

his  bill ;  that  shares  in  the  grant  were  to  be  divided  among  mem- 
bers of  Congress  so  as  to  get  a  majority ;  and  that  those  who 
did  not  want  shares,  could  get  cash.54  In  view  of  these  reve- 
lations, the  House  virtuously  had  to  take  some  action  in  its 
own  defense;  by  a  vote  of  78  to  17  it  found  Randall  guilty  of 
"  attempting  to  corrupt  the  integrity  of  its  members."  " 

Congress  Refuses  to  Admit  Wilson's  Claim. 

During  this  time  Justice  Wilson  was  actively  pushing  his 
Illinois  and  Wabash  bill  in  Congress.  In  1796,  acting  upon 
the  favorable  report  of  the  House  Committee  on  Public  lands, 
he  sought  to  get  a  confirmation  from  the  Senate,  claiming  that 
the  original  cost  and  interest,  exclusive  of  the  consideration 
money  paid  to  the  Indians,  amounted  to  £40,000  at  least. 

No  doubt,  the  pushers  of  this  fraudulent  claim  expected  that 
by  the  application  of  perseverance  and  possibly  of  other  means, 
they  would  be  able  to  obtain  some  compromise  or  indemnity. 

But  with  Randall's  bribery  scandal  fresh  in  the  public  mind, 
both  Senate  and  House  were  disposed  to  be  exceedingly  cir- 
cumspect. That  the  House  of  Representatives  was  by  no 
means  to  be  accused,  as  a  whole,  of  having  during  those  years 
an  immoderate  degree  of  integrity,  was  conclusively  demon- 
strated by  the  fact  that  Jonathan  Dayton  (some  of  whose 
transactions  have  been  described)  was  elevated  to  be  its 
Speaker.  Wilson's  memorial  was  referred  to  a  committee  con- 
sisting of  Ross,  Livermore,  Tracy,  Tazewell  and  Stockton, 
which  committee,  on  February  3,  1797,  reported,  adopting  the 
Senate  Committee's  adverse  report  of  March  26,  1792.  The 
Senate,  as  a  body,  adopted  the  committee's  adverse  report  on 
February  16,  I797.cc  This  action  of  the  Senate  thwarted  Jus- 

54  Journal  of  the  House  of  Representatives,  First   Session,   Fourth 
Congress,  1795,  pp.  58,  68,  72-80,  etc. 

55  "American  State  Papers:  Miscellaneous,"  Vol.  I:  131.     (Doc.  No. 
66.) 

8  "American  State  Papers :  Public  Lands,"  Vol.  1 :  72-73.  (Doc.  No 
30.) 


THE   SUPREME   COURT   UNDER   JOHN    JAY  175 

tice  Wilson's  large  project,  the  only  one  of  his  enterprises  that 
he  did  not  succeed  in  consummating.57 

In  order  to  give  a  further  clear  account  of  the  numerous 
other  land  undertakings  and  their  ramifications,  of  Morris, 
Nicholson  and  their  associated  or  abetting  group  of  other  poli- 
ticians, it  is  necessary  from  here  on  to  interweave  the  narrative 
of  various  other  land  transactions. 


Robert  Morris  &  Co.  Get  Nine  Thousand  Lots  in  Washington. 

It  need  hardly  be  said  that  when  the  site  of  the  present  city 
of  Washington  was  chosen  as  the  location  for  the  national 
capital,  the  politicians  in  touch  with  Washington's  administra- 
tion had  the  fullest  advance  knowledge.  It  is  a  circumstance 
further  worthy  of  note  that  the  Carrolls,  especially  Daniel  Car- 
roll of  Maryland,  owned  a  large  part  of  the  then  waste  lands 
now  embraced  within  the  District  of  Columbia.  In  the  suit 
of  Van  Ness  vs.  the  City  of  Washington,  which  came  up  be- 
fore the  Supreme  Court  of  the  United  States,  in  January, 
1830,  the  Government  stated  in  its  plea  that,  when  the  city 
was  first  laid  out,  David  Burns  (the  fa'ther  of  Marcia  Van 
Ness)  had  sold  a  considerable  area  of  land  to  the  Government 
for  £25  (or  a  fraction  more  than  $66.66)  an  acre,58  "  which 
price  was  more  than  threefold  the  market  price  or  real  value, 
independently  of  the  adventitious  and  speculative  valuation, 

57  But,  twelve  years  after  his  death,  the  persistent  promoters   suc- 
ceeding   him    again    petitioned    Congress.     The    House    Committee    on 
Public  Lands  refused  to  consider  the  claim.     "  Your  committee  submit," 
was  its  report  in  part  on  January  30,  1811,  "as  the  result  of  their  in- 
quiries on  this  point,  that  although  a   few  solitary  instances  may  be 
found  in  the  early  settlements  of  the  country  of  Indian  deeds  of  land 
being  recognized  as  valid,  yet   such   were  the  consequences   resulting 
from  frauds  practised  on  the  simple  natives,  such  the  collision  of  claims 
and  controversies     .    .     .     that  Government,  at  a  pretty  early  day,  in- 
terfered and  assumed  a  kind  of  guardianship  over  the  rights  of  the 
natives"    [requiring  the  consent  of  the  Government  to  make  a   con- 
veyance of  lands  valid]. — "American  State  Papers:  Public  Lands,"  Vol. 
II :  253. 

58  In  1790  £i  equaled  about  $2.66  U.  S.  money. 


176  HISTORY  OF  THE   SUPREME   COURT 

superinduced  by  making  this  the  permanent  seat  of  govern- 
ment." 89 

The  District  of  Columbia  was  ceded  by  Maryland  and  Vir- 
ginia in  1789.  In  1791,  the  greater  part  of  the  individual  owners 
conveyed  the  land  to  Thomas  Beall  and  John  M.  Gantt,  in  trust 
to  be  laid  out  as  a  city;  Beall  and  Gantt,  by  order  of  Presi- 
dent Washington,  transferred  their  trust  to  Gustavus  Scott, 
William  Thornton  and  Alexander  White,  the  Commissioners 
for  laying  out  the  City  of  Washington.  All  these  men,  it  may 
be  remarked,  soon  after  branched  out  as  extensive  capitalists, 
having  possessed  themselves  of  funds  to  start  various  enter- 
prises ;  Scott,  for  example,  became  one  of  the  incorporators  of 
the  Washington  and  Baltimore  Turnpike  Company,  chartered 
by  the  Maryland  Legislature,  in  1796.  The  Beall  family  was 
represented  in  the  same  company. 

On  September  29,  1792,  President  Washington  directed  that 
Washington  city  lots  be  sold,  at  public  or  private  sale  by  the 
Commissioners.  On  December  10,  1793,  Robert  Morris,  John 
Nicholson  and  James  Greenleaf  formed  the  North  American 
Land  Company,  and  signed  articles  of  copartnership  of  the 
purchase  and  sale  of  large  tracts  of  land  in  Pennsylvania  and 
elsewhere  in  the  United  States.  This  partnership  was  to  last 
five  years  certain,  or  for  a  longer  time  if  the  parties  should 
consent.  The  purchases  were  to  be  made  by  Morris  and  Nich- 
olson for  the  account  of  the  company.  Not  only  the  lands  so 
purchased  but  other  great  tracts  then  owned  by  Morris  and 
Nicholson  were  to  become  the  joint  stock  of  tbe  company. 
Greenleaf  was  to  pay  cash  to  the  other  partners  fc  *  one-third 
of  the  said  lands.  No  partner  was  permitted  to  buy  lands  on  his 
own  account,  so  as  to  interfere  with  the  objects  of  the  com- 
pany. The  clear  profits  were  to  be  equally  divided.00 

Greenleaf  had  been  speculatively  buying  up  large  tracts  of 

"Peters'  Reports,  etc.,  Vol.  IV:  240. 

60  See  statement  of  facts  ?n  the  case  of  Gilmore  vs.  North  American 
Land  Company  et.  al.,  Peters'  Reports,  Vol.  1 :  460-465. 


THE    SUPREME    COURT    UNDER    JOHN    JAY  177 

Washington  city  real  estate,  about  as  early  as  1791,  from  Stod- 
dert.01  On  December  24,  1793,  two  weeks  after  the  copartner- 
ship articles  between  Morris,  Nicholson  and  Greenleaf  were 
signed,  an  act  was  lobbied  through  the  Maryland  Legislature 
(which  still  had  jurisdiction)  providing  that  certificates  granted 
by  the  Commissioners  of  the  City  of  Washington  should  be 
sufficient  to  vest  the  legal  estate  in  the  purchasers.  But  a 
clause  reserved  the  Commissioners  the  right  to  resell  any  lots 
not  paid  for.  On  that  identical  day,  immediately  after  the  pas- 
sage of  the  act,  Greenleaf,  specifically  as  Morris'  agent,  made 
a  contract  with  the  Commissioners  for  the  sale  to  them  of  nine 
thousand  city  lots.  Of  these,  the  purchase  of  three  thousand 
lots  had  already  been  contracted  to  Greenleaf  as  Morris'  agent 
at  £35  each,  current  money  (which  was  at  the  rate  of  about 
$2.66  U.  S.  money,  per  £i),  payable  yearly  in  seven  equal 
payments  without  interest;  the  other  six  thousand  lots  were 
sold  at  £30  each,  to  be  paid  annually  in  seven  installments 
without  interest.™ 

The  negotiating  attorney  for  Greenleaf  was  Judge  William 
Cranch,  a  nephew  of  John  Adams,  and  therefore  a  cousin  of 
John  Quincy  Adams.  Cranch  had  married  a  sister  of  James 
Greenleaf.  It  is  chronicled  that  so  heavily  involved  was  Cranch 
by  his  own  indorsements  of  notes  in  this  transaction,  that  he 
had  to  seek  the  protection  of  the  insolvency  laws.03 

Now  was  publicly  seen  the  full  and  real  import  of  the  special 
law  passed  by  the  Maryland  Legislature.  If  a  poor  person 
had  bought  goods  payable  in  installments,  the  legal  ownership 
would  have  remained  in  the  seller  until  the  last  penny  of  the 
debt  had  been  paid.  But  Morris  and  Greenleaf  secured  title 
as  soon  as  they  received  a  certificate  from  the  Commissioners, 

61  See,  Case  of  James  Greenleaf's  Lessee  vs.  James  Birth,  V  Peters, 
132-140. 

62  The  full  copy  of  Morris  and  Greenleaf's  contract  is  to  be  found 
in  Doc.  No.  141,  "  American  State  Papers :  Miscellaneous,"  Vol.  1 :  223- 
224. 

03  In  1802  Cranch  was  appointed  Reporter  for  the  Supreme  Court  of 
the  United  States,  succeeding  A.  J.  Dallas. 


178  HISTORY  OF  THE   SUPREME   COURT 

and  could  sell  at  once,  paying  the  Government  from  the  pro- 
ceeds of  their  gradual  sales.  Thornton,  Forrest,  Scott  and  other 
Commissioners,  and  President  Washington  himself,  were  buy- 
ing Washington  city  lots.64 

When,  sixteen  years  later,  an  action  growing  out  of  this  con- 
tract was  decided  by  Chief  Justice  Marshall,  that  jurist,  who 
customarily  made  light  of  charges  of  bribing  legislatures,  and 
even  after  the  charges  had  been  proved,  treated  them  as  fiction, 
made  (for  him)  this  unusual  comment  as  to  the  special  act 
passed  by  the  Maryland  Legislature  and  the  Morris  and  Green- 
leaf  contract: 

"  A  contract  for  6,000  lots  was  concluded  on  the  day  that  this 
act  passed,  immediately  after  its  passage.  In  this  contract  was 
merged  a  former  contract  for  3,000  lots  made  with  one  of 
the  purchasers  in  this  second  contract.  It  is  impossible  to  re- 
flect upon  this  fact  without  being  persuaded  that  the  law  was 
agreed  upon  by  the  parties  to  the  contract,  and  was  specially 
adapted  to  it.  The  immensity  of  property  disposed  of  by  this 
sale,  furnished  motives  of  legislative  aid  by  giving  a  speedy 
remedy  to  the  commissioners  which  might  not  exist  on  the  sale 
of  particular  lots  occasioned  by  any  partial  default  in  the  pur- 
chasers." 65 

Greenleaf  as  Morris'  agent  also  contracted  for  the  purchase 
of  220  lots  owned  by  Daniel  Carroll ;  about  428^  lots  from 
Notley  Young;  and,  on  July  15,  1794,  he  made  a  contract  with 
Uriah  Forrest  and  Benjamin  Stoddert  for  the  sale  to  him  of 
239/4  lots  owned  by  them.  He,  moreover,  bought  much  addi- 
tional Washington  real  estate.80 

But,  although  Greenleaf,  in  these  purchases,  acted  as  Mor- 
ris' agent,  and  by  agreement  was  to  buy  all  lands  for  joint 
account  of  Morris,  Nicholson  and  himself,  he  nevertheless  re- 

«*  "  American  State  Papers :  Miscellaneous,"  Vol.  1 :  226-228. 

65  Case  of  Oneale  vs.  Thornton,  VI  Cranch,  69. 

00  Case  of  Gilmore  vs.  North  American  Land  Company  el  al.,  I 
Peters,  460-465.  The  "  Duddington  "  estate  of  Daniel  Carroll  was  taken 
over  within  the  limits  of  the  City  of  Washington. 


THE  SUPREME  COURT  UNDER  JOHN  JAY  179 

served  certain  large  lots  in  Washington  to  himself,  by  agree- 
ment with  Morris  and  Nicholson. 

The  speculative  holdings  of  the  trio  now  were  enlarged.  On 
January  13,  1794,  they  entered  into  an  agreement  with  Thomas 
Stokely  and  John  Hoge  by  which  Morris  and  Nicholson  bound 
themselves  to  buy  from  the  State  of  Pennsylvania,  warrants 
for  120,000  acres  of  land  located  between  the  Ohio  and  the 
Alleghany  rivers.  Morris  and  Nicholson  were  to  supply  the 
funds ;  and  for  their  work  in  locating  and  surveying  the  lands, 
Stokely  and  Hoge  were  to  get  one  equal  third  part  of  the 
whole  property.67  In  order  to  carry  on  his  vast  commercial 
and  land  speculations  Morris  already  had  been  forced  to  bor- 
row immense  sums  of  money.  From  whence  were  the  funds 
for  the  purchase  of  these  120,000  acres  to  come?  How  was 
Nicholson  to  raise  his  share  of  the  money?  As  Comptroller- 
General  of  Pennsylvania,  Nicholson  received  only  a  moderate 
salary. 

Impeachment  Proceedings  Against  Nicholson. 

The  means  by  which  Nicholson  obtained  his  capital  were  re- 
vealed, in  1794,  when  the  Legislature  of  Pennsylvania  was  called 
upon  to  institute  impeachment  proceedings  against  him. 

For  twelve  years  Nicholson  had  been  Comptroller-General ; 
he  was  a  powerful  politician ;  and  it  was  largely  through  him, 
William  Bingham  and.  Governor  Thomas  Mifflin  (another 
member  of  the  Federal  Constitutional  Convention  of  1787) 
that  Robert  Morris  and  Justice  James  Wilson  and  their  asso- 
ciates had  been  able  to  get  a  charter  and  a  recharter  for  the 
Bank  of  North  America.  It  was  due  to  their  connivance  that 
Morris,  Wilson,  Coxe  and  others  had  been  able  to  grasp  enor- 

07  Ibid.  An  act  passed  April  3,  1792,  by  the  Pennsylvania  Legislature 
recited  that  as  the  most  valuable  lands  in  Pennsylvania,  included  in  the 
purchase  made  from  the  Indians  in  1758,  had  been  appropriated  to 
purchasers,  those  remaining  lands  which  were  "inferior"  should  be 
sold  at  a  reduced  price.  The  price  was  accordingly  reduced. —  Carey 
and  Bioren's  "  Pa.  Laws,"  Vol.  IV :  133. 


l8o  HISTORY  OF  THE  SUPREME  COURT 

mous  areas  of  the  most  valuable  land  in  Pennsylvania.  Nich- 
olson and  Morris,  Bingham  and  others  were  associates  in  more 
than  one  corporation.  While  converting  themselves  into  great 
landholders,  they  were  rushing  bills  through  the  various  leg- 
islatures, granting  themselves  valuable  charters  and  rights  for 
canal  and  other  corporations.  Thus,  in  1792-1793,  the  Penn- 
sylvania Legislature,  under  Governor  Mifflin,  passed  an  act  in- 
corporating the  Conewago  Canal  Company,  and  naming  Robert 
Morris,  John  Nicholson,  William  Bingham,  David  Ritten- 
house,08  Alexander  J.  Dallas  and  other  politicians  as  proprie- 
tors and  directors.69  Dallas,  as  we  have  noted,  was  the  first 
Reporter  of  the  Supreme  Court  of  the  United  States.  Robert 
Morris  was  also  president  of  the  Schuylkill  and  Susquehanna 
Navigation  Company,70  and  Rittenhouse  one  of  the  incorpora- 
tors  of  the  Delaware  and  Schuylkill  Navigation  Company,  char- 
tered in  1791." 

Nicholson  Resigns. 

One  particular  charge  on  which  impeachment  proceedings 
were  brought  against  Nicholson  was  made  by  Christian  Fe- 
briger,  the  State  Treasurer.  He  accused  Nicholson  of  having, 
as  Comptroller-General,  made  a  personal  profit  of  at  least 
twenty-five  per  cent,  in  illegally  redeeming  certain  State  cer- 
tificates, called  New  Loan  certificates. 

08  The  Rittenhouse  family  of  Philadelphia  became  well  known  to  later 
generations  by  reason  of  its  wealth  and  aristocratic  airs.     It  shared  in 
the  profits  of  the  great  land  jobbing  of  the  times.     A  House  Committee 
(of  Congress)  reported,  on  March  3,  1797,  that  when  the  Government 
brought  suit  for  moneys  due,  David  Rittenhouse  fraudulently  "  trans- 
ferred all  his  estate  to  his  father;  and  after  haying  made  a  fallacious 
return  of  outstanding  debts,  to  assignees,  he  obtained  a  discharge,  under 
the  insolvent  laws  of  Pennsylvania,  from  his  private  creditors." —  See, 
"American  State  Papers:  Miscellaneous,"  Vol.  I:  157.     (Doc.  No.  96.) 

09  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  IV :  252,  and  "  American  State 
Papers  :  Miscellaneous,"  Vol.  1 :  851. —  Nicholson  was  also  a  director  of 
a  company  chartered  to  build  a  bridge  over  the  Delaware.     Dozens  of 
charters  for  canal,  turnpike,  insurance  and  other  companies  were  being 
rushed  through  the  Legislature  at  this  time. 

70  "  American  State  Papers  :  Miscellaneous  "  Vol.  1 :  853. 

71  Ibid.,  847. 


THE    SUPREME    COURT    UNDER    JOHN    JAY  l8l 

These  were  an  outgrowth  of  the  Revolutionary  debt.  Ac- 
cording to  this  charge,  Comptroller-General  Nicholson  had 
declared  them  redeemable,  and  certified  them  to  Governor  Mif- 
flin,  despite  the  fact  that  the  law  neither  recognized  them  as 
a  part  of  the  State  indebtedness,  nor  provided  funds  for  their 
redemption.  Of  their  total  value  of  $63,075.37  it  was  charged 
that  $60,220.41  of  the  certificates  were  subscribed  for  by  Nich- 
olson personally,  were  owned  by  him,  and  were  in  his  name. 
Ten  out  of  fourteen  members  of  the  whole  Pennsylvania  Sen- 
ate pronounced  Nicholson  guilty  of  two  of  the  most  serious 
charges,  but  the  vote  failed  of  being  the  constitutional  two- 
thirds  required  for  impeachment.  The  question  of  removing 
him  was  then  taken  up,  but  Nicholson  anticipated  further  ac- 
tion by  resigning  the  office  of  Comptroller-General.72 

Had  not  the  most  powerful  political  and  social  influences 
been  used  effectively  in  Nicholson's  behalf,  it  is  certain  that  he 
would  not  have  been  allowed  to  escape  impeachment. 

Did  Nicholson  now  retire  to  private  life  a  ruined  man?  By 
no  means.  He  already  owned  millions  of  acres  of  land ;  and 
his  associates  had  by  then  put  through  a  gigantic  land  trans- 
action in  Georgia  which  eclipsed  any  land  jobbery  hitherto 
accomplished.  It  caused  a  national  scandal  of  the  widest  and 
most  lasting  proportions,  not  only  then  deeply  implicating  Jus- 
tice James  Wilson,  as  it  did,  but  seventeen  years  later,  as  we 
shall  see,  it  figured  importantly  in  the  case  of  a  decision  of  a 
noted  Chief  Justice  of  the  Supreme  Court  and  in  the  activities 
of  a  certain  distinguished  Associate  Justice. 

A  Thirty-Five-Million-Acre  Grant,  and  Wilson's  Part. 

Robert  Morris,  Nicholson,  Zachariah  Cox  and  Greenleaf 
were  already  interested  in  12,500  acres  of  valuable  land  in 
Georgia  which  had  been  obtained  in  1787,  and  came  to  them 

72  "  Impeachment  Trial  of  Judges  Hopkinson  and  Nicholson"  (Pub- 
lished in  1795),  Vol.  I,  etc.:  69,  87,  762,  764,  etc.  This  volume  gives  the 
official  account  of  the  testimony  and  proceedings. 


l82  HISTORY    OF   THE    SUPREME    COURT 

by  route  of  a  fraudulent  sheriff's  sale.73  On  January  7,  1795, 
an  act  was  passed  by  the  Georgia  Legislature,  over  the  Gov- 
ernor's protest,  granting  to  four  companies,  more  or  less  as- 
sociated, a  colossal  total  area  of  land,  then  owned  by  the  State 
of  Georgia.  The  entire  tract  covered,  it  was  variously  esti- 
mated, from  thirty  to  forty  million  acres.  The  four  compa- 
nies were  supposed  (reckoning  by  the  total  purchase  price  of 
$500,000)  to  pay  the  State  2JS  cents  an  acre  for  their  grants; 
this  sum,  at  $500,000,  would  seem  to  have  made  their  total 
area  in  the  grants  21,500,000  acres.  But  according  to  the 
terms  and  boundaries  of  the  grant,  the  area  really  amoimted 
to  35,000,000  acres;  the  grantees  themselves  estimated  the 
area  at  nearly  40,000,000  acres.74 

This  act  was  passed  under  the  patriotic  guise  of  being  a 
law  "  for  appropriating  a  part  of  the  unlocated  territory  of 
this  State  for  the  payment  of  the  late  State  troops,  and  for 
other  purposes  "  etc.75  What  the  act  did  was  to  dispose  of 
Georgia's  vacant  lands  west  to  the  Mississippi  River.  Hence 
the  grants  were  called  the  Yazoo  grants,  from  the  river  of 
that  name.  The  four  companies  were : 

I.  The  Georgia  Mississippi  Company.     The  beneficiaries  of 
the  grant  of  nearly  twelve  million  acres  obtained  by  this  com- 
pany were  New  England  capitalists  of  whom  we  shall  have 
pressing  need  of  saying  more  hereafter  in  the  proper  place. 

II.  The  Upper  Mississippi  Company. 

III.  The  Tennessee  Company,  of  which  Zachariah  Cox  was 
the  head. 

IV.  The  Georgia  Company.     James  Greenleaf  held  2,500,- 
ooo  acres  in  this  company.     The  other  incorporators  and  pro- 

73  See,  Case  of  Field  and  others  vs.  Holland  and  others  (VI  Cranch, 
8).     The  record  in  this  case  includes  a  letter  written  by  Holland,  in 
1795,  stating  that  Morris,  Nicholson,  Greenleaf  and  Zachariah  Cox  were 
concerned  in  the  property,  and  saying  that  he  expected  them  to  send  a 
draft  to  lift  an  execution  which  he  (Holland)  held  upon  it. 

74  "American  State  Papers:  Public  Lands,"  Vol.  I:  134.     (Doc.  No. 
74-) 

152. 


THE    SUPREME    COURT    UNDER   JOHN    JAY  183 

moters  of  the  company  were  a  crowd  of  the  most  conspicuous 
Southern  politicians  and  aristocrats.  The  company  had  been 
incorporated  on  January  i,  1795  —  only  a  little  more  than  a 
month  before  it  received  its  grant.  Among  its  incorporators 
and  promoters  were  Zachariah  Cox,  General  and  United  States 
Senator  James  Gunn,  Matthew  McAllister,  George  Walker, 
William  Longstreet  and  others,  acting  in  trust  for  Wade 
Hampton.70  John  Randolph  was  credited  with  28,000  acres, 
J.  P.  Carnes  and  Mrs.  Elizabeth  Carnes  received  an  allotment 
of  162,000  acres;  Robert  Walton,  an  ancestor  of  the  present 
enormously  rich  Goelet  family,  obtained  as  his  share  74,000 
acres. 

The  company's  chief  financial  backer  was  Associate  Justice 
James  Wilson,  of  the  Supreme  Court  of  the  United  States ; 
he  advanced  £25,000,  which  he  got  by  selling  land  at  exorbi- 
tant prices  to  settlers  in  Pennsylvania.  For  this  £25,000  Wil- 
son received  ten  shares  entitling  him  to  an  allotment  of  750,- 
ooo  acres.77  Others  advanced  sundry  sums,  varying  from 
a  few  hundred  pounds  to  £2,000,  £3,000  and  £5,000.  The 
purposes  to  which  a  large  part  of  this  money  were  put 
will  presently  be  seen.  In  view  of  a  decision  handed  down 
by  Wilson  in  the  Supreme  Court  in  a  case  against  Georgia  •*$ 
the  Chief  Justice  and  two  Associate  Justices  concurring  — 
that  the  States  were  not  sovereign,  this  connection  of  Wilson's 
with  the  Georgia  Land  Company  has  its  added  significance 
when  considered  in  connection  with  a  subsequent  decision  of 
the  Supreme  Court  of  the  United  States. 

In  payment  for  their  grants,  the  four  companies  tendered 
payment  to  Georgia  in  depreciated  currency,  which  the  State 
officials  refused  to  accept.  But  claiming  that  it  was  legal 

76  Ibid.,  139-140. 

77  Ibid.,    141.     Wilson's    schemes    and   projects   were   numerous.     On 
December  24,  1795,"  he  secured  the  passage  of  an  act  by  the  Maryland 
Legislature  by  which  he  and  others  were  authorized  to  raise  $50,000  by 
means  of  a  lottery  for  the  capital  of  a  company  to  improve  the  naviga- 
tion of  the  Susquehanna  River. — "  Laws  of  Maryland,  1785,"  etc.,  Vol. 
II,  Chap.  62. 


184  HISTORY   OF   THE   SUPREME   COURT 

payment,  the  companies,  for  ulterior  reasons,  which  we  shall 
describe  later  on,  went  rapidly  ahead  selling  or  distributing  the 
lands.  The  Upper  Mississippi  Company  sold  more  than 
11,000,000  acres,  for  ten  cents  an  acre,  to  Thomas  L.  Win- 
throp,  Ebenezer  Oliver,  Benjamin  Jay,  George  Blake,  John 
Peck,  Joseph  Sewell,  and  other  New  England  (chiefly  Bos- 
ton) capitalists;  the  Upper  Mississippi  and  the  Tennessee 
Companies  appropriated  their  grants,  and  the  Georgia  Com- 
pany distributed  a  total  of  6,728,000  acres  among  its  members 
and  to  others,  and,  in  addition,  reserved  1,000,000  acres  to 
sell  to  settlers.78 

Within,  therefore,  a  brief  time  after  these  vast  areas  had 
been  corruptly  obtained,  the  allotments  had  been  hastily  made 
on  a  grand  scale  among  a  small  clique  of  beneficiaries. 

The  North  American  Land  Company. 

Thirteen  days  after  the  Georgia  Legislature  passed  the  act 
making  these  grants,  Robert  Morris,  John  Nicholson  and 
James  Greenleaf,  on  February  20,  1795,  entered  into  an  agree- 
ment by  which  they  formed  the  North  American  Land  Com- 
pany. By  this  agreement,  647,046  acres  of  the  lands  in  Penn- 
sylvania belonging  to  the  copartnership  of  Morris,  Nicholson 
and  Company,  "  as  well  as  other  large  quantities  of  land  be- 
longing to  those  partners,  amounting  in  the  whole  to  about 
six  million  acres,  were  to  constitute  the  capital  of  the  said 
land  company."  These  lands  were  valued  by  the  men  making 
this  contract  at  fifty  cents  an  acre,  and  were  to  be  divided 
into  thirty  thousand  shares  at  $100  a  share,  at  which  price 
they  were  to  be  sold.  The  company  was  to  exist  fifteen  years, 
and  dividends  were  to  be  paid  annually.70 

In  that  same  year  a  tract  of  five  hundred  thousand  acres,  in 
what  is  now  West  Virginia,  were  patented  to  Robert  Morris, 

"American  State  Papers:  Public  Lands,"  Vol.  I:  141. 
79  Case  of  Gilmore  vs.  North  American  Land  Company  et  al,  I  Peters, 
460-465. 


THE    SUPREME    COURT    UNDER    JOHN    JAY  185 

by  the  State  of  Virginia,80  but  this  tract  does  not  seem  to  have 
been  included  in  the  North  American  Company's  holdings. 
If  Justice  James  Wilson  was  a  member  of  this  company,  the 
court  records  do  not  state  it;  his  heirs  or  assignees  may  have 
been  included  in  "  the  others  "  sued.  As  we  have  seen,  James 
Greenleaf  held  two  million  five  hundred  thousand  acres  in  the 
Georgia  Company,  in  which  Justice  James  Wilson  had  put 
£25,000,  constituting,  by  far,  the  largest  investment  made  by 
any  one  of  the  interested  individuals. 

At  this  identical  time,  according  to  the  bill  in  the  action, 
twenty-two  years  later,  of  Gilmore  vs.  North  American  Land 
Company  and  others,  Morris,  Nicholson  and  Greenleaf  were 
insolvent  or  greatly  indebted,  and  they  entered  into  the  agree- 
ment of  February  20,  1795,  with  intent  to  defraud  their  cred- 
itors. The  answers  of  Greenleaf  and  the  directors  of  the 
North  American  Land  Company  denied  that  they  were  in- 
solvent at  the  time,  but  admitted  that  they  were  indebted  to  a 
large  amount.  Furthermore,  those  answers  asserted  posi- 
tively that  the  purchase  money  for  the  particular  lands  bought 
by  Gilmore  under  execution  had  been  paid  by  Nicholson  and 
not  by  Morris. 

Justice  Bushrod  Washington,  in  delivering  the  decision  of 
the  Supreme  Court  of  the  United  States,  in  October,  1817, 
held  that,  inasmuch  as  Morris  had  not  paid  in  any  money,  his 
title  was  only  an  equitable  one,  arising  from  his  partnership 
with  Greenleaf  and  Nicholson.  Hence,  the  agreement  of 
1795  could  not,  in  law,  be  set  aside.  But  an  accounting  was 
decreed,  under  Section  13,  Statutes  of  Queen  Elizabeth,  by 
which  a  conveyance  was  deemed  fraudulent  if  voluntarily 
made  by  the  grantor  at  a  time  when  he  was  indebted ;  such  a 

80  See,  Case  of  Henry  C  .King  vs.  Mullins  (171  U.  S.  Reports,  404- 
437).  King,  in  1898,  claimed  to  have  derived  title  to  certain  of  this 
land  from  Morris  through  various  conveyances.  King  lost,  the  Supreme 
Court  deciding  that  the  lands  had  been  forfeited  by  reason  of  non- 
payment of  taxes  from  1884  to  1888.  See  also  case  of  King  vs.  Panther 
Lumber  Company,  same  volume  and  same  result. 


l86  HISTORY   OF   THE    SUPREME   COURT 

conveyance,  held  Justice  Washington,  must  have  been  made 
with  intent  to  defraud  creditors  and  others.81 


The  Great  Disclosures  of  Bribery. 

To  resume  the  story  of  the  Georgia  Land  grant :  The  news 
of  the  passage  of  the  law  giving  the  enormous  grant  of  ap- 
proximately thirty-five  million  acres  to  a  few  speculators  was 
read  with,  amazement  throughout  the  entire  Union.  In 
Georgia,  the  mass  of  the  people  were  roused  to  fury. 

The  real  circumstances  of  the  grant,  however,  might  never 
have  been  revealed,  had  it  not  been  that  another  group  of 
capitalists  had  vainly  tried  to  get  the  grant  for  themselves, 
after  offering  the  State  of  Georgia  a-  definite  payment  of 
$800,000.  Defeated  in  their  aim,  and  smarting  for  revenge, 
they  at  once  got  busy,  and  soon  the  entire  State  was  ringing 
with  charges  that  the  associated  four  companies  had  used 
bribery  to  get  their  grant.  That  this  was  no  idle  rumor,  but  a 
serious  enough  fact,  was  soon  proved  by  the  results  of  Grand 
Jury  investigations. 

Clem  Lanier,  a  Georgia  State  Senator,  testified  that  he  was 
offered  two  shares  for  twenty-five  thousand  acres  to  vote  for 
the  grant,  although  Longstreet  had  previously  told  him  that 
a  legislator's  share  was  seventy-five  thousand  acres.  The  cer- 
tificates of  shares  were  signed  by  Judge  Nathaniel  Pendle- 
ton.82  This  was  the  same  Pendleton  who  had  been  elected  to 
the  Federal  Constitutional  Convention,  but  had  never  taken 
his  seat.  Of  Pendleton's  earlier  land  grabbing  we  have  al- 
ready given  facts  in  Chapter  III. 

State  Senator  Philip  Clayton  testified  as  to  State  Senator 
Robert  Thomas:  ".  .  .  After  the  passing  of  the  act,  he 
[Thomas]  brought  a  considerable  sum  of  money  to  my  house 

81 1  Peters,  460-465. 

82 "  American  State  Papers:  Public  Lands,"  Vol.  I:  145.  (Doc.  No. 
74.)  Judge  Pendleton,  it  may  be  remarked,  was  a  close  personal  friend 
of  Alexander  Hamilton.  He  removed  to  New  York  City,  and  was  one 
of  Hamilton's  seconds  in  the  duel  with  Burr. 


THE    SUPREME   COURT    UNDER   JOHN    JAY  l? 

and  asked  me  to  take  care  of  it ;  I  believe  it  was  two  thousand 
dollars ;  on  which  I  asked  him  how  he  got  it,  or  if  he  got  his 
proportion  of  the  lands,  or  words  to  that  effect;  he  said  it  is 
nothing  to  you,  take  care  of  it,  and  smiled.  .  .  ." 83 

Another-  legislator,  R.  Flournoy,  swore  that  Judge  Pendle- 
ton  offered  him  a  share  "  provided  the  business  succeeded  " ; 
that  the  meetings  of  the  Georgia  Mississippi  Company  were 
held  in  his  [ Flournoy 's]  quarters;  and  that  General  Gunn  had 
tried  to  get  him  to  bribe  Senator  Mitchell  with  shares  for 
seventy-five  thousand  acres,  but  that  Mitchell  had  refused 
the  offer.84 

State  Representative  James  Sims  testified  that  Gunn  had 
said  to  him :  "  Sims,  I  suppose  from  what  I  have  heard,  you 
are  a  poor  man,  and  now  you  have  an  opportunity  of  making 
something  handsome  for  yourself  and  family ;  if  you  will  pre- 
vail on  Mann  to  vote  for  the  bill,  I  will  give  fifty  thousand 
acres  of  land."  85 

State  Senator  Thomas  Wylly  told  Representative  Gindrat 
that  he  [Gindrat]  could  have  "  ten  likely  negroes  "  for  his 
share.88  Many  other  legislators  testified  similarly.87 

The  Rescinding  Act. 

The  people   of    Georgia   were   thoroughly   exasperated   by 
these  revelations.     They  elected  an  entire  body  of  new  rep- 
resentatives, pledged  to  rescind  the  act.     This  annulling  act 
was  passed  on  February  13,  1796,  and  was  so  remarkable  a 
document  that  it  is  well  worth  giving  at  length. 
The  preamble  described  the  corrupt  act  of  1795, 
"  By  which  an  enormous  tract  of  unascertained  millions  of 
acres  of  the  vacant  territory  of  this  State  was  attempted  to 
be  disposed  of  to  a  few  individuals,  in  fee  simple,  and  the 

83  Ibid.,  141.  84  Ibid.,  145.  85  Ibid.,  147.  s«  Ibid.,  145. 

87  For  full  testimony  see  Ibid.,  144-149.  Chided  for  having  sold  his 
vote  for  $600  when  others  were  getting  $1,000,  Representative  Thomas 
Roburn  replied,  according  to  the  testimony,  "  that  it  showed  he  was 
easily  satisfied,  and  was  not  greedy"  (p.  144). 


l88  HISTORY    OF   THE    SUPREME    COURT 

same  is  not  only  unfounded,  as  being  without  express  consti- 
tutional authority,  as  well  as  to  principles  and  form  of  gov- 
ernment, the  good  citizens  of  this  State  have  chosen  for  their 
rule,  which  is  democratical,  or  a  government  founded  on 
equality  of  rights  and  which  is  totally  opposed  to  all  propri- 
etary grants  or  monopolies  in  favor  of  a  few,  which  tend  to 
build  up  that  destructive  aristocracy  in  the  new,  which  is 
tumbling  in  the  old,  world ;  and  which,  if  permitted  must  end 
in  the  annihilation  of  democracy  and  equal  rights  —  those 
rights  and  principles  of  government  which  our  virtuous  fore- 
fathers fought  for  and  established  with  their  blood." 

The  preamble  then  went  on  to  say  that  such  extravagant 
grants  tended  to  establish  a  republican  aristocracy,  and  that 
the  "  said  usurped  act  "  was  not  for  the  public  good : 

"i.  Because  self  preservation,  or  the  protecting  itself,  is 
the  greatest  good  and  first  duty  of  every  government ;  and,  as 
has  been  shown,  immense  monopolies  of  land,  by  a  few  indi- 
viduals, under  the  sanction  of  the  Government  are  opposed 
to  the  principles  of  democracy  or  the  fundamental  laws  the 
citizens  of  the  State  have  chosen  for  their  rule  which,  so  far 
from  being  for  the  good  or  self  preservation  of  democratical 
or  equal  government,  is  most  manifestly  for  its  destruction 
and  injury. 

"  2.  Because  the  expression  *  good  of  the  State '  embraces 
.  .  .  the  enjoyment  of  all  rights,  natural  or  acquired, 
not  expressly  delegated  for  the  purposes  of  government;  and 
the  sale  of  such  an  enormous  tract  to  a  few  speculators  which 
was,  and  is,  the  common  right  of  all  the  good  citizens  of  this 
State,  is  contrary  to  those  rights,  and  therefore,  to  their  man- 
ifest injury,  and,  of  course,  to  the  injury  of  the  State." 

The  fourth  reason  given  in  the  preamble  for  the  repeal  of 
the  act  said  that  "  there  was  no  necessity  or  pressing  urgency 
for  the  sale  of  such  an  immense  tract  of  territory,  equal  to 
some  European  kingdoms " ;  that  the  passage  of  the  "  said 


THE  SUPREME  coukT  UNDER  JOHN  JAY  189 

,  usurped  act "  had  been  accomplished  by  subterfuge ;  that  the 
State  needed  only  $30,000  for  the  alleged  purpose  for  which 
the  land  was  sold  to  the  speculators,  and  that  more  than  that 
sum  was  in  the  treasury  unappropriated;  and  that  no  State 
or  nation  "  is  justified  in  wantonly  dissipating  its  property  or 
revenues,  and  a  legal  alienation  can  only  take  place  from  the 
most  pressing  necessity ;  and  the  territory  attempted  to  be  dis- 
posed of  (was  the  said  usurped  act  valid)  was  wantonly  dis- 
sipated, it  being  disposed  of  for  the  trifling  sum  of  five  hun- 
dred thousand  dollars,  a  sum  not  adequate  to  the  annual  quit 
rents  such  lands  were  charged  with  previously  to  the  Revolu- 
tion, by  the  British  king;  which  wanton  dissipation  cannot  be 
for  the  good  of  the  State." 

The  fifth  reason  for  the  repeal  declared :  "  Because,  ex- 
clusive of  the  immense  loss  of  revenue  to  which  the  State  is 
exposed,  from  the  relinquishment  of  taxation,  the  sum  of 
five  hundred  thousand  dollars  was  accepted  as  the  considera- 
tion money  for  the  sale,  and  the  sum  of  eight  hundred  thou- 
sand dollars,  offered  by  persons  of  as  large  a  capital,  and  as 
much  respectability  and  credit,  and  on  terms  more  advan- 
tageous to  the  State,  was  refused;  which,  as  it  was  (should 
the  said  usurped  act  have  been  declared  valid)  a  clear  loss  of 
three  hundred  thousand  dollars  to  the  revenues  of  the  State, 
it  is  evident  that  the  law  authorizing  the  sale  was  not  deemed 
by  the  Legislature  '  for  the  good  of  the  State,'  which  must 
have  consisted  in  obtaining  the  highest  price  and  the  most 
advantageous  terms." 

The  preamble  continued : 

".  .  .  And  whereas,  it  does  appear  from  sundry  affi- 
davits and  proofs  satisfactory  to  this  Legislature,  as  well  as 
from  the  presentments  of  the  grand  juries,  on  oath,  of  a  con- 
siderable majority  of  the  counties  of  this  State  ...  as 
also  from  the  self  evident  proof  of  fraud,  arising  from  the 
rejection  of  eight  hundred  thousand  dollars,  and  the  accept- 


HISTORY  OF  THE   SUPREME   COURT 

ance  of  five  hundred  thousand  dollars  for  which  the  said  ter- 
ritory was  sold;  that  fraud  and  corruption  were  practiced  to 
obtain  the  said  act  and  grants,  and  that  a  majority  of  the 
members  of  the  Legislature  who  voted  in  favor  of  the  afore- 
said act  were  engaged  in  the  purchase,  and  a  majority  of  one 
vote  only  appeared  in  favor  of  this  usurped  act  in  the  Senate, 
and  on  which  majority  in  that  branch  the  same  was  passed, 
and  corruption  appears  against  more  than  one  member  of  that 
body;  which,  exclusive  of  the  many  deceptions  used,  and  the 
inadequacy  of  price  for  such  an  immense  and  valuable  tract  of 
country,  and  supposing  it  to  be  constitutional,  which  this  Leg- 
islature declares  it  is  not,"  etc.,  etc.88 

The  annulling  act  ordered  that  the  act  giving  the  grant  be 
expunged  from  the  records,  and  the  deed  be  publicly  burnt. 
This  was  done;  the  Legislature  marched  in  solemn  order  to 
the  front  of  the  Capitol,  and  put  the  deed  to  the  flames. 

And  the  Remarkable  Sequel. 

Did  this  repealing  act  hold?  Was  it  the  finality  of  the 
transaction?  Did  the  grant  become  thereby  forfeited  to  the 
State  of  Georgia,  and  had  the  distinguished  bribers  spent  their 
money  for  nothing? 

At  this  point  it  would  seem  so.  But  there  is  a  sequel  still 
to  be  told  in  its  appointed  position  later  in  this  work  —  a  se- 
quel of  the  most  impressive  importance,  in  many  respects,  in 
the  narrative  of  the  Supreme  Court  of  the  United  States. 
In  due  place  further  along  in  these  chapters  the  termination 
is  described  and  its  immense  significance  to  the  generation  of 
that  time  and  to  all  generations  since  is  pointed  out.  There 
the  connecting  links  are  all  appropriately  brought  together: 
how  the  capitalists  obtaining  the  claim  of  these  grants  re- 
fused to  accept  the  repealing  act  as  valid ;  how  they  fell  back 
upon  that  very  Constitutional  clause  which  James  Wilson,  the 

88  This  document  is  given  in  full  in  "  American  State  Papers :  Public 
Lands,"  Vol.  1 :  156-158. 


THE    SUPREME    COURT    UNDER    JOHN    JAY  19! 

principal  backer  of  the  briberies,  had  proposed  in  the  Fed- 
eral Constitutional  Convention  after  his  Bank  of  North  Amer- 
ica experience,  that  no  State  had  the  right  to  pass  legislation 
impairing  the  obligation  of  contracts ;  how  a  certain  illustrious 
lawyer,  fifteen  years  later,  acted  as  the  chief  attorney  for  the 
claimants  and  obtained  from  the  Chief  Justice  then  presiding 
a  decision  in  their  favor  under  which  they  received  from  the 
Government  a  total  indemnity  of  nearly  five  million  dollars ; 
and  how  the  very  next  year  that  attorney  was  put  upon  the 
bench  of  the  Supreme  Court  of  the  United  States,  where  he 
presently  handed  down  a  decision  in  favor  of  the  Chief  Jus- 
tice, in  a  case  involving  that  particular  Chief  Justice's  personal 
interests. 

Robert  Morris  Thrown  Into  Jail. 

Some  final  facts  remain  to  be  given  concerning  the  outcome 
of  those  great  land  transactions,  in  other  parts  of  the  United 
States,  of  Robert  Morris,  James  Greenleaf,  Justice  James  Wil- 
son, John  Nicholson  and  their  train  of  associates. 

On  May  28,  1796,  an  agreement  was  made  between  Green- 
leaf,  on  the  one  part,  and  Robert  Morris  and  Nicholson,  on 
the  other,  by  which  Greenleaf  'agreed  to  sell  to  Morris  and 
Nicholson  his  interest  in  the  North  American  Land  Company 
for  a  large  sum  of  money.  Morris'  share  in  the  property 
was  not  to  be  transferred  until  the  money  was  paid ;  this  sum, 
according  to  the  answer  in  the  suit  of  Gilmore,  in  1817,  was 
not  paid.80  The  arrangement,  as  the  court  found,  was  a  fraud- 
ulent one,  intended  to  defraud  creditors,  which  creditors 
were  mainly  the  Government  and  various  States ;  already,  in 
1795,  Morris,  Nicholson  and  Greenleaf  were  so  deeply  in 
debt  as  to  be  virtually  insolvent.  Their  object  was  to  retain 

89  Gilmore  vs.  North  American  Land  Company,  et  aL,  I  Peters,  460. 
The  company's  affairs  were  in  such  a  queer  and  confused  state  that 
the  court's  decision  in  this  case  stated:  "It  appears  that  many  shares 
in  the  company  were  disposed  of;  hut  it  is  quite  uncertain  what  the  real 
condition  of  the  company's  affairs  is." 


192  HISTORY   OF   THE   SUPREME    COURT 

as  much  of  the  land  as  they  could;  anticipating  judgments 
against  them,  they  were  resorting  to  various  circumventing 
devices. 

On  June  8,  1797,  a  judgment  was  obtained  in  New  York 
against  Morris;  his  commercial  and  land  operations  had  been 
so  enormous,  and  to  carry  them  he  had  had  to  borrow  such 
volumes  of  money,  that,  when  pressed  by  private  creditors,  he 
could  not  pay.  The  court  judgment  resulted  in  his  being  put 
in  jail  °°  in  Philadelphia,  where  he  remained  imprisoned  for 
some  years.  He  persuaded  Gouverneur  Morris  to  advance 
the  money  for  the  payment  of  the  judgment,  which  was  then 
assigned  to  Adam  Hoops,  a  personal  friend  of  Robert  Morris, 
and  agent  for  the  various  parties  concerned.  One  of  the  pur- 
poses of  this  assignment  was  to  preserve  to  Morris  the. right 
to  redemption  in  1,500,000  acres  which  he  had  conveyed  to 
the  Holland  Company,  in  the  nature  of  a  mortgage,  as  he  sup- 
posed. Hoops  later  assigned  the  judgment  to  Gouverneur 
Morris,  and  on  September  16,  1799,  Robert  Morris  confirmed 
the  trust  deed.  To  an  arrangement  entered  into  by  Robert 
Morris  that  Hoops,  acting  for  the  trustees,  should  buy  in  such 
lands  as  were  sold  under  execution,  Gouverneur  Morris  con- 
sented. 

Certain  of  Morris'  lands  in  New  York  were  sold  under 
judgment  on  February  6,  1800.  Hoops  made  his  bid  at  the 
sale,  but  being  outbid  and  not  having  sufficient  funds  on  hand, 
persuaded  the  sheriff  to  adjourn  the  sale  until  May  13,  fol- 
lowing, Gouverneur  Morris  supplying  Hoops  with  the  pound- 
age for  the  sheriff's  fees. 

But  on  April  2,  1800,  Gouverneur  Morris,  without  letting 
Robert  Morris,  or  the  trustees,  know  anything  about  his  plan, 
and  without  notice,  assigned  the  judgment  in  question  to  the 
Holland  Company,  for  a  full  consideration  in  money.  .  Gouver- 
neur Morris,  after  this  act  of  duplicity  toward  his  partner, 

90  Washington,  who  was  a  very  intimate  friend  of  Morris,  wrote  Mrs. 
Morris  an  autograph  letter  inviting  her,  during  her  husband's  incarcera- 
tion, to  stay  indefinitely  in  his  mansion  at  Mount  Vernon. 


THE   SUPREME   COURT   UNDER   JOHN   JAY  IQ3 

made  an  agreement,  on  the  same  day,  with  Thomas  L.  Ogden, 
agent  of  the  Holland  Company,  that  the  sale  of  the  lands 
should  take  place  under  the  judgment,  and  should  be  bought 
in  by  Ogden  for  the  Holland  Company.  Ogden  did,  indeed, 
buy  in  the  lands  at  the  sheriff's  sale,  but  it  seems  that  he,  too, 
did  s6me  profitable  fraud  on  his  own  account ;  he  turned  over 
to  the  Holland  Company  only  58,5/0  acres, —  not  half  the 
extent  of  land  claimed  by  that  company.91 

This  transaction  caused  an  extended  litigation  between  the 
various  personages  concerned,  three  of  whom  —  the  two  Mor- 
rises and  Fitzsimmons  —  had  been,  as  we  have  seen,  members 
of  the  Federal  Constitutional  Convention.  In  fact,  a  long  se- 
ries of  litigation  for  thirty-five  years  followed  Morris'  land 
jobbing  transactions  in  New  York,  Pennsylvania,  Washington 
and  in  other  places.  The  docket  of  the  Supreme  Court  of  the 
United  States  was  full  of  these  involved  cases.92  Morris  had 
also  owned  land  in  New  Jersey,  some  of  which,  near  what  is 
now  Belvidere,  he  had  given,  in  1793,  to  his  son-in-law, 
Charles  Croxall,  who  built  a  mansion  there.  Those  who 
really  benefited  from  Morris'  misfortunes  were  a  .crowd  of 
politicians  and  capitalists  mostly  in  the  background. 

Nicholson's  Enormous  Estate. 

Greenleaf  held  on  to  much  of  his  property  or  passed  it  over 
to  lessees.  Nicholson  left,  at  his  death  in  December,  1800, 
an  enormous  estate  in  land  in  Pennsylvania,  Virginia,  Ken- 
tucky, North  Carolina,  South  Carolina,  Georgia  and  other 
States.  Some  of  the  Pennsylvania  legislative  documents  es- 

91  The  foregoing  details  are  set  forth  in  the  case  of  Fitzsimmons  and 
others  vs.  Ogden  and  others,  VII  Cranch,  2-22.  (February  4,  1812.) 
Slow  in  his  physical  movements,  Gouverneur  Morris  was  exceedingly 
nimble  mentally.  He  had  lost  a  leg,  and  thereafter  contented  himself 
with  a  wooden  leg,  scorning  to  buy  "  one  of  those  fancy  legs." 

s-  See,  for  example,  the  case  of  Van  Ness  vs.  the  City  of  Washington 
and  the  U.  S.,  IV  Peters,  232-286  (January,  1830),  and  other  cases 
growing  out  of  his  Washington  real  estate  speculations. 


194  HISTORY   OF   THE    SUPREME   COURT 

timated  the  area  at  from  three  to  four  million  acres;  other 
reports,  notably  a  report  in  1842,  by  the  judiciary  committee 
of  the  Pennsylvania  House  of  Representatives,  stated  that  it 
was  five  million  acres. 

The  bulk  of  this  estate  was  in  Pennsylvania,  and  included 
extensive  tracts  of  the  very  richest  coal  deposits.  Nicholson 
was  deeply  in  debt  for  taxes  to  the  State  of  Pennsylvania, 
but  by  various  legal  devices  he  had,  while  Comptroller  Gen- 
eral, transferred  large  areas  to  various  land  companies  in 
which  he  was  a  leading  figure.  One  of  these  was  the  "  Asy- 
lum Company  "-  —  a  speculative  land  company  organized  for 
the  purpose  of  selling  land  to  settlers.  The  State  of  Penn- 
sylvania held  a  lien  upon  Nicholson's  estate  for  unpaid  taxes 
amounting  to  $300,000.  In  1805  the  Legislature  passed  an 
act  for  the  "  more  effectual  and  speedy  recovery  of  debt  due 
from  the  late  John  Nicholson,"  93  and  on  March  19,  1807,  it 
enacted  a  law  to  force  the  "  Asylum  Company  "  to  give  in- 
formation which  it  had  refused,  and  compelling  it  to  file  a 
schedule  of  the  lands  claimed  by  it.04  Considerable  of  the 

93  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  VII :  528. 

04  Ibid.,  Vol.  VIII:  210-211.  Despite  the  State's  lien,  different  indi- 
viduals and  corporations  contrived  to  get  hold  of  most  of  this  valuable 
estate  during  the  next  forty  years ;  the  frauds  and  thefts  by  which  they 
did  so  are  set  forth  in  many  legislative  documents,  and  formed  a  con- 
tinuous scandal.  To  quote  one  of  these  documents :  Writing  on  Jan- 
uary 24,  1842,  to  William  Elwell,  chairman  of  the  Judiciary  Committee 
of  the  Pennsylvania  House  of  Representatives,  Judge  J.  B.  Anthony 
of  the  Nicholson  Court  (a  court  especially  established  to  pass  upon 
questions  arising  from  the  disposition  of  the  estate)  said: 

"On  the  iith  of  April,  1825,  an  act  passed  the  Governor  to  appoint 
agents  to  discover  and  sell  the  Nicholson  lands  at  auction  for  which 
they  were  allowed  twenty-five  per  cent.  A  Special  Board  of  Property 
was  also  formed  to  compromise  and  settle  with  claimants.  From  what 
has  come  to  my  knowledge  in  relation  to  this  act,  I  am  satisfied  that 
the  commonwealth  was  seriously  injured  by  the  manner  in  which  it  was 
carried  out  by  some  of  the  agents.  It  was  made  use  of  principally  for 
the  benefit  of  land  speculators ;  and  the  very  small  sums  received  by 
the  State  treasurer  for  large  and  valuable  tracts  sold  and  compromised, 
show  that  the  cunning  and  astute  land  jobbers  could  easily  overreach 
the  Board  of  Property  at  Harrisburg.  .  .  .  Many  instances  of  gross 
fraud  might  be  enumerated,  but  it  would  serve  no  useful  purpose." 
Judge  Anthony  further  said  that  "  very  many  of  the  most  influential, 


THE   SUPREME   COURT   UNDER   JOHN   JAY  195 

coal  lands  and  iron  deposit  holdings  of  some  of  the  largest 
present  corporations  in  the  United  States,  such  as  the  Steel 
Trust  and  the  Coal  Trust,  can  be  traced  back  to  their  acqui- 
sition by  Nicholson  and  his  partners. 

Wilson  Evades  Warrants  for  His  Arrest. 

As  for  Justice  James  Wilson,  signer  of  the  Declaration  of 
Independence,  author  of  a  memorable  Constitutional  clause 
pushed  by  him  in  the  Federal  Constitutional  Convention,  out- 
classing Jay  on  the  high  tribunal  of  the  Supreme  Court  of 
the  United  States  in  point  of  legal  skill,  fertility  and  vigorous, 
dominant  individuality  —  he  presented  a  sorry  figure  in  his 
last  years. 

That  he  had  long  been  a  notorious  land  speculator ;  that  he 
had  supplied  the  principal  part  of  the  funds  to  wrest  the  pub- 
lic lands  from  the  Commonwealth  of  Pennsylvania,  and  to 
bribe  the  Legislature  of  Georgia  —  these  and  other  acts  in 
nowise  lessened  his  standing  in  the  great  court.  No  impeach- 
ment proceedings  were  brought  against  him ;  nearly  all  the 
members  of  the  Senate,  and  other  high  officials  or  personages, 
had  been  associated  with  him  in  his  jobberies,  or  were  con- 
cerned in  similar  ones. 

But  with  the  collapse  of  the  Morris-Greenleaf-Nicholson 
fabric  of  colossal  land  ownership,  difficulties  poured  fast  on 
Wilson.  Writs  of  arrest  were  issued  against  him,  but  to  the 
last  he  was  agile  and  resourceful.  He  evaded  arrest  in  Penn- 
sylvania, by  exchanging  circuits  with  his  colleague,  Justice 
Iredell  of  North  Carolina.05  Still  in  intense  fear  of  being 

astute  and  intelligent  inhabitants  and  gentlemen  of  high  standing" 
were  participants  in  the  frauds.  (Pa.  House  Journal,  1842,  Vol.  II, 
Doc.  No.  127:  700-704.)  Much  of  the  coal  and  iron  lands  now  owned 
by  the  Coal  Trust  and  the  Steel  Trust  were  thus  obtained  at  the  time 
by  various  individuals  and  corporations. 

95  At  that  time  and  for  more  than  eighty  years  afterwards,  it  was  the 
assigned  practice  of  each  Supreme  Court  justice  to  preside  over  the  cir- 
cuit court  in  the  district  from  which  he  came. 


196  HISTORY  OF   THE   SUPREME   COURT 

pursued,  arrested  and  prosecuted,  he  died  at  Edenton,  N.  C. 
on  August  28,  1798.  He  left  two  children  who  were  his 
heirs ;  and  the  cases  which  we  have  hitherto  cited  reveal  that 
before  writs  of  arrest  were  issued  against  him,  he  had  made 
disposition  of  much  of  his  property. 


CHAPTER  V 
FROM  JAY'S   RESIGNATION   TO   MARSHALL'S   ACCESSION 

To  the  puzzled  astonishment  of  the  general  public,  Chief 
Justice  Jay,  after  presiding  over  the  Supreme  Court  of  the 
United  States  for  five  years,  stepped  down  from  that  office 
to  go  to  England,  as  the  plenipotentiary  of  the  United  States, 
and  execute  a  new  treaty. 

This  happened  in  April,  1794.  ".  .  .  No  appointment," 
wrote  Jay  on  April  17  of  that  year  to  his  wife,  referring  to 
his  selection  as  special  envoy,  "  ever  operated  more  unpleas- 
antly upon  me ;  but  the  public  considerations  which  were 
urged,  and  the  manner  in  which  it  was  pressed,  strongly  im- 
pressed me  with  a  conviction  that  to  refuse  it  would  be  to 
desert  my  duty  for  the  sake  of  domestic  concerns  and  com- 
forts." * 

Jay  Quits  the  Chief  Justiceship. 

As  the  sequel  proved,  Jay's  quitting  the  Chief  Justiceship 
amounted  to  a  de  facto  resignation,  although  he  did  not  for- 
mally resign  until  June  29,  1795,  after  his  return  from  Eng- 
land. Jay  did  not  again  sit  on  the  Supreme  Court ;  and  in- 
deed it  would  seem  that  President  Washington  did  not  expect 
his  return  to  that  office,  for  in  a  secret  and  confidential  letter, 
Washington,  on  April  29,  6794,  asked  Jay  whether  he  would 
not  consent  to  become  the  resident  Minister  of  the  United 
States  at  London  after  his  mission  as  envoy  was  concluded.2 
Washington's  intermediary  on  this  occasion  was  Jay's  former 

1  "  Correspondence  and  Public  Papers  of  John  Jay,"  Vol.  IV:  5. 

2  Ibid.,  9-10. 

197 


198  HISTORY   OF   THE   SUPREME   COURT 

law  partner,  Robert  R.  Livingston,  to  whom  the  post  was  also 
offered.  Both  Jay  and  Livingston  declined  it.  Washing- 
ton's aim  was  to  get  rid  of  Gouverneur  Morris,  as  United 
States  Minister  to  Paris.  Morris,  as  Justin  McCarthy  tells  in 
his  "  French  Revolution,"  was  scandalously  promoting  the  sale 
in  Paris  of  his  American  lands.  Morris  removed,  it  was 
Washington's  intention  to  transfer  Pinckney  from  London  to 
Paris,  and  put  Jay  in  Pinckney's  place. 

That  Washington  should  have  taken  Jay  away  from  the 
Chief  Justiceship  argued  powerful  motives  behind  the  mis- 
sion to  England.  Of  all  the  Governmental  departments 
Washington  fully  recognized  the  supreme  importance  of  the 
judicial  department,  of  which,  of  course,  the  Supreme  Court 
of  the  United  States  was  the  cardinal  and  head  factor.  When, 
on  October  17,  1789,  Washington  had  originally  appointed 
Jay  Chief  Justice,  he  had,  in  enclosing  Jay's  commission, 
strongly  urged  him  to  accept.  Washington  in  that  letter  had 
expressed  the  hope  that  Jay  would  not  "  hesitate  a  moment  to 
bring  into  action  the  talents,  knowledge,  and  integrity  which 
are  necessary  to  be  exercised  at  the  head  of  that  department 
which  must  be  considered  as  the  keystone  of  our  political 
fabric."3  Washington,  then,  considered  the  judiciary  as  the 
chief  bulwark  of  the  political  state,  and  at  the  apex  of  this 
judiciary  was  John  Jay.  Important  as  was  the  Chief  Justice- 
ship, it  is  evident  that  Washington  in  selecting  Jay  regarded 
the  mission  to  England  as  of  more  importance  at  that  juncture. 

Already  Jay  had  expressed  his  desire  to  retire  to  his  estate 
and  live  in  leisure  with  his  family  and  his  books.  The  life  of 
a  Supreme  Court  Justice  was  nomadic  enough ;  it  was  the 
practice  of  the  Supreme  Court  members,  often  two  together, 
to  preside  over  the  Circuit  Courts  in  different  cities  a  great 
part  of  the  year.  They  traveled  over  the  country  extensively, 
and  it  need  hardly  be  explained  that  travel  was  then  slow, 

3  "  Correspondence  and  Public  Papers  of  John  Jay,"  Vol.  Ill:  378. 


FROM    JAY  S    RESIGNATION    TO    MARSHALL'S    ACCESSION          199 

rough,  primitive  and  arduous.4  Few  leisure-loving  lawyers 
cared  for  this  onerous  duty,  and  the  only  reason  Jay  had  ac- 
cepted was,  in  his  own  words,  "  to  place  the  judiciary  on  a 
proper  footing."  In  accepting  the  mission  to  London,  Jay 
was  further  away  than  ever  from  his  contemplated  life  of 
retirement.  What  were  the  deep  actuating  reasons? 

Except  the  small,  exclusive  group  cognizant  of  the  secret 
reasons,  no  one  could  fathom  why  it  was  that  Jay,  after  hav- 
ing himself  selected  the  post  of  Chief  Justice,  should  volun- 
tarily quit  it  in  order  to  draw  up  a  treaty  which  any  able, 
unattached  politician  could,  it  was  supposed,  do  as  well.  Intel- 
ligent observers  of  events  knew  that,  in  addition  to  the  nominal 
purposes,  there  must  be  at  bottom  potent  aims  prompting  this 
extraordinary  move,  but  precisely  what  were  those  aims  was, 
for  a  time,  a  matter  of  some  mystification. 

As  a  landholder  himself,  and  allied  by  descent,  marriage 
and  interest  with  many  of  the  old  manorial  families  of  New 
Y6rk,  Jay  had  chosen  the  highest  judicial  position  in  the 
land  as  one  in  which  he  could  be  of  the  most  vital  service  to 
his  class,  as  well,  perhaps,  as  securing  the  memorable  honor 

4  The  Supreme  Court  of  the  United  States  was  not  then  a  distinct 
institution  or  entity,  as  it  is  now,  separate  from  the  Circuit  Courts.  It 
was,  to  a  large  extent,  the  whole  Federal  judicial  system  of  the  country, 
and  its  members  decided  criminal,  as  well  as  civil,  cases.  The  super- 
eminence  of  the  Supreme  Court  was  recognized  by  Washington.  On 
July  18,  1793,  Washington,  through  Thomas  Jefferson,  then  Secretary 
of  State,  asked  the  Supreme  Court  for  an  opinion  on  the  lines  of  sepa- 
ration between  the  different  departments  as  drawn  by  the  Constitution. 
This  the  Supreme  Court  declined  to  give,  excusing  itself  on  the  ground 
of  its  being  a  court  of  last  resort,  and  hence  the  impropriety  of  extra- 
judicially  deciding  questions. 

Those  who  may  be  inclined  to  think  that  the  Supreme  Court  was  of 
no  great  importance  because  of  the  comparatively  few  civil  cases  decided 
may  also  consider  this  explanation  in  Dallas'  Reports  referring  to  the 
proceedings  in  1793,  of  the  Supreme  Court  of  the  United  States  then 
holding  its  session  in  Philadelphia :  "  The  Malignant  Fever  which, 
during  this  year  raged  in  Philadelphia,  dispersed  the  great  body  of  its 
inhabitants,  and  proved  fatal  to  thousands,  interrupted,  likewise,  the 
business  of  the  Courts ;  and  I  cannot  trace  that  any  important  cause 
was  agitated  during  the  present  Term." —  II  Dallas :  480. 


2OO  HISTORY  OF   THE  SUPREME   COURT 

of  being  the  first  to  fill  that  exalted  seat.5  Was  there  a  still 
stronger  and  more  pressing  service  that  he  could  render  to 
the  great  landowners  by  his  departing  to  frame  a  new  treaty 
with  the  British  Government?  If  so,  what  was  the  nature  of 
that  service? 

Its  nature  was  not  at  all  political,  as  conventional  writers 
would  have  it;  the  motive  actuating  Jay  was  one  involving  a 
twofold  purpose,  springing  from  the  most  acute  sense  of  self- 
preservation  on  the  part  of  the  landed  class  and  its  adjuncts. 

The  French  Revolution  Terrifies  the  Landed  Class. 

As  the  French  Revolution  progressed,  battering  to  ruin 
the  old  feudal  conditions,  and,  amid  portentous  upheavals  of 
the  French  artisans  and  peasants,  overthrowing  the  aris- 
tocracy, the  American  landowning  aristocracy  was  filled  with 
terror.  Great  estates  in  France  were  confiscated,  divided 
and  sold;  the  governing  monarchy  and  aristocracy  of  ages 
were  supplanted  by  revolutionary  committees;  and  the  very 
suspicion  of  being  an  aristocrat  was  a  sufficient  warrant  for 
the  guillotine.  The  frightful  conditions  long  prevailing  in 
France  by  which  the  laborer  was,  in  law  and  in  fact,  treated 
worse  than  a  beast  of  burden  were  swept  away,  at  least  for 
the  time.  The  march  of  the  French  Revolution  was  hailed 
with  joy  by  the  workers  of  America,  and  hardly  less  so  by  the 
small  merchants,  who  instinctively  grasped  its  real  purport  in 
assuring  the  advent  of  bourgeois  power  and  rule  over  the 
grave  of  the  feudal  regime. 

But  the  American  aristocracy,  like  the  aristocracies  of  all 
other  countries,  shuddered  at  the  news  of  the  successive  con- 
vulsions, and  well  realized  that  the  French  Revolution  was 

5  The  manner  in  which  the  office  of  Chief  Justice  was  held  is  shown 
by  the  deference  in  the  address  of  the  Lansingburgh  (Federalist)  Com- 
mittee to  Jay  on  June  30,  1792,  in  which  it  spoke  of  "Our  respect  for 
your  character,  in  the  dignified  office  of  Chief  Justice  of  the  United 
States,"  etc.  "  Correspondence  and  Public  Letters  of  John  Jay,"  Vol 
HI :  436. 


2OI 

not  one  of  mere  phrases  but  was  striking  down  to  the  depths. 
The  feudal  conditions,  somewhat  analogous  to  those  in  Eu- 
rope, long  prevailing  in  America,  were  the  very  conditions 
which  the  American  landowners  were  bent  upon  maintaining, 
and  had  maintained.  Some  of  the  most  powerful  leaders  of 
the  American  Revolution,  such  as  John  Adams,  Hamilton, 
Jay  and  others  had  preferred  a  monarchical  form  of  govern- 
ment, or,  if  not  that,  at  any  rate  a  mode  as  nearly  as  possible 
imitative.  The  American  Revolution,  as  contemplated  and 
molded  by  these  men,  was  a  rebellion  for  liberty  of  trade 
and  colonial  autonomy;  had  that  right  been  granted  at  the 
outset,  they  would  have  remained  steadfast  monarchist  loy- 
alists.6 They  so  admired  the  British  form  of  government 
that  they  patterned  the  American  form  of  government  as 
closely  after  it  as  they  dared. 

These  astute  leaders  of  the  American  aristocracy  closely 
followed  the  developments  of  the  French  Revolution,  and  knew 
that  the  portentous  character  of  those  events  not  merely  af- 
fected France  but  were  destined  to  have  a  world-wide  influence 
on  the  thought  and  condition  of  peoples. 

Jay  had  bitterly  assailed  the  progress  of  the  French  Rev- 
olution. Even  when  acting  as  envoy  in  London  he  continued 
this  denunciation.  In  a  private  letter  to  Washington  written 
from  London,  March  6,  1795,  he  said  that,  "  The  French  Jac- 
obins have  greatly  injured  the  cause  of  rational  liberty,"  and 
then  proceeded  to  rejoice  over  their  recent  suppression,  mean- 
ing the  execution  of  Robespierre,  St.  Just  and  the  Jacobin 
group.7  In  a  letter  from  New  York,  January  19,  1796,  Jay 
wrote  to  Robert  Goodloe  Harper  that  he  had  favored  the 
overthrow  of  despotism  and  the  establishment  of  a  limited 
monarchy,  but  was  terrified  by  the  later  revolutionary  move- 

G  Thus,  profiting  from  her  experience  with  the  American  colonies, 
Great  Britain  gave  the  traders  of  Canada  the  full  right  to  make  what- 
ever goods  they  wanted,  and  sell  them  where  they  pleased.  The 
Canadian  ruling  classes  have  remained  stanch  monarchists. 

7  "  Correspondence  and  Public  Papers  of  John  Jay,"  Vol.  IV :  166. 


2O2  HISTORY  OF   THE   SUPREME   COURT 

ment  which  executed  Louis  XVI.8  The  counter-revolution 
planned  by  the  royalists  with  its  inevitable  train  of  butcheries, 
had  it  been  successful ;  the  carefully-planned  slaughter  of  the 
people  by  the  Swiss  mercenaries  on  August  10;  the  immense 
loss  of  life  caused  by  the  wars  of  the  allies  upon  the  French,— 
these  did  not  impress  Jay  with  the  slightest  feelings  of  horror. 
His  class  instincts  and  interests  were  entirely  with  the  counter- 
revolution. 

With  England  leading  the  reactionary  nations  of  Europe 
against  the  France  of  the  French  Revolution,  the  American 
aristocracy  saw  that  the  self-interest  of  all  aristocracies  de- 
manded that  every  possible  help  be  given  to  the  British  Gov- 
ernment. This  assistance  could  not  be  preferred  in  the  form 
of  regiments  and  warships.  Had  the  Federalists,  the  "  party 
of  property,"  then  in  power,  attempted  a  serious  prosecution 
of  the  war  against  France,  a  national  insurrection  would  have 
resulted. 

But  help  could  be  extended  in  another  way  of  so  indirect 
and  subtle,  yet  withal  so  fundamental  a  kind,  as  not  to  seem 
suspicious  on  its  face.  Better,  perhaps,  at  this  juncture  than 
armaments  was  an  economic  assistance  to  England,  the  fore- 

8  Ibid.,  201.  As  illustrative  of  the  opinions  of  Jay's  intimate  set,  the 
instance  can  be  cited  of  General  Phillip  Schuyler  (Hamilton's  father- 
in-law)  writing  to  Jay,  May  17,  1800,  deploring  recent  anti-Federalist 
successes,  and  calling  for  measures  to  save  the  nation  from  "  the  mis- 
rule of  a  Man  [Jefferson]  who  .  .  .  is  in  fact  pervaded  with  the 
mad  French  philosophy." —  Ibid.,  273. 

The  French  Revolution,  as  led  by  Robespierre  and  his  group,  really 
represented  not  the  proletariat,  but  the  aims  of  nascent  capitalist  class 
to  overthrow  feudal  rule  and  develop  capitalism.  This  is  admirably 
explained  in  Kropotkin's  recent  "  Great  French  Revolution."  While 
Jay  was  denouncing  the  French  Revolution,  his  political  opponents  at 
home  recognized  what  the  Revolution  was  actually  accomplishing. 
Thus,  the  Society  of  St.  Tammany,  of  New  York,  largely  a  middle-class 
organization,  gave  this  toast  at  its  dinner  on  May  12,  1793 :  "  Success 
to  the  armies  of  France,  and  Wisdom,  Concord  and  Firmness  to  the 
Convention."  "  The  first  sentence  was  hardly  articulated,"  said  the 
New  York  "Journal  and  Patriotic  Register,"  May  15,  1793,  "when  as 
one  the  whole  company  arose  and  gave  three  cheers,  continued  by  roars 
of  applause  for  several  minutes ;  the  toast  was  then  given  in  whole  and 
the  applause  reiterated."  The  Philadelphia  Society  likewise  proclaimed 
its  support  of  the  French  Revolution,  as  did  other  societies. 


FROM   JAY'S   RESIGNATION   TO   MARSHALL'S  ACCESSION         203 

most  of  manufacturing  countries.  With  the  gold  from  Brit- 
ish trade,  the  English  government  was  busy  subsidizing  other 
European  nations  in  the  coalition  against  France  in  a  colossal 
effort  to  crush  the  French  Revolution,  and  to  restore  the  an- 
cient regime.  A  tariff  favorable  to  England,  it  was  thought, 
could  be  arranged  without  having  to  run  the  gauntlet  of  effec- 
tive opposition  in  the  Senate;  not  until  twenty  years  later  did 
the  manufacturers  of  cotton,  woolen  and  other  goods  begin  to 
acquire  power  sufficient  to  command  legislation.  In  the 
United  States  of  1795  the  large  landholding  class  occupied  and 
swayed  virtually  every  branch  of  government. 

This  was  one  of  the  impelling  reasons  for  Jay's  mission; 
this  was  partly  why  he,  who  was  secure  for  life  in  the  lofty 
office  of  Chief  Justice  of  the  Supreme  Court  of  the  United 
States,  voluntarily  relinquished  it  for  the  brief  and  rather 
arduous  business  of  arranging  a  new  pact  with  Great  Britain. 
As  the  most  conspicuous  representative  of  the  American 
landed  class,  he  could  be  trusted,  every  fiber  and  instinct  of 
him.  But  there  was  another  reason,  which,  added  to  the  first, 
decided  Jay  to  undertake  the  mission  —  a  reason  (considering 
popular  feeling)  of  so  delicate  and  dangerous  a  nature  that 
none,  at  that  critical  period,  had  such  strong  motives  as  he 
for  transforming  the  plan  into  a  fact  accomplished. 

Manipulation  of  Confiscated  Estates. 

We  have  seen  how,  before  the  Revolution,  vast  areas  of 
land  in  the  colonies  were  owned  by  absentee  British  nobles, 
merchants  and  lawyers,  and  how  prominent  colonial  person- 
ages were  associated  with  them  in  companies,  or  as  agents. 
These  estates,  as  well  as  those  of  native  Tories,  were  confis- 
cated by  general  acts  during  the  Revolution. 

But  such  measures  of  confiscation,  while  seemingly  effec- 
tive, were,  in  many  instances,  only  nominally  so.  To  evade 
the  confiscatory  acts,  estates  were  fraudulently  conveyed  to 
safe  parties,  while  act  after  act  was  slid  through  legislatures 


2O4  HISTORY  OF   THE   SUPREME   COURT 

during  the  Revolution,  altering  or  emasculating  the  provisions 
of  former  acts,  each  successive  law  being  more  in  favor  of 
the  absentee  or  expatriated  landowners.  The  claims  to  a 
number  of  these  confiscated  estates,  also,  were  bought  by 
astute  lawyers,  or  by  capitalists  for  whom  the  lawyers  were 
acting.  These  attorneys  would  never  have  purchased  the 
claims  had  they  not  known  of  certain  technical  deficiencies  in 
the  laws  by  reason  of  which  they  had  good  hopes  of  recovering 
the  estates,  or  their  equivalent,  in  the  courts. 

As  for  the  courts,  they  were  filled  with  judges  who  had 
been  attorneys  for,  or  who  were  relatives  of,  families  whose 
estates  had  been  confiscated.  The  large  estates,  too,  of  a 
number  of  Jay's  relatives  or  personal  friends,  such  as  William 
Bayard,  the  Van  Schaak  family  and  others,  had  been  con- 
fiscated ;  and  what  was  true  of  Jay's  circle  was  true  of  that 
of  almost  all  other  judges  and  high  Government  officials. 

Finally,  British  lords  and  merchants  held  claims  for  large 
sums  due  them  from  settlers  or  from  other  purchasers  of 
lands,  or  from  merchants.  These  claims  had  been  outlawed 
by  statutes  passed  during  the  Revolution,  and  had  been  bought 
up  for  almost  nothing  by  speculators. 

The  plan  under  way  contemplated  nothing  less  than  a  series 
of  stealthy  articles  and  acts  by  which  the  courts  would  be 
able  to  find  specious  grounds  for  gradually  restoring  certain 
confiscated  estates,  or  for  validating  the  purchases  of  claims 
by  American  politicians.  This  plan  was  certain  to  provoke 
the  wildest  outburst  of  popular  resentment  and  anger.  But 
Jay  affected,  and  really  felt,  a  contempt  for  the  people  whom 
he  despised  as  much  as  they  hated  him. 

A  number  of  important  cases  involving  the  recovery  of 
confiscated  British  debts  or  British  or  Tory  estates  had  come 
before  the  Supreme  Court  of  the  United  States  when  Jay 
was  Chief  Justice.  Chief  Justice  Jay  and  Justice  Iredell  and 
Judge  Griffin  had  held  that  the  debts  were  obligatory.  But  on 
one  point  they  disagreed:  the  question  whether  specific  pay- 


FROM    JAY.'S    RESIGNATION    TO    MARSHALL  S   ACCESSION          20$ 

ments  of  such  debts  already  made  to  the  various  States  by 
American  debtors  were  barred  from  recovery  or  not.  Chief 
Justice  Jay  had  held  in  favor  of  the  British  creditors,  and  his 
associates  for  the  American  debtors.9 

The  noted  and  much  discussed  case  of  Ware,  Administrator 
vs.  Hylton  and  others,10  was  one  of  such  cases.  This  suit  had 
originally  been  instituted  in  1791.  The  reason  why  it  com- 
manded so  much  public  attention  and  aroused  such  acrimony 
was  because  it  embodied  the  question  of  the  rights  of  British 
creditors  to  recover  debts  contracted  before  the  Revolution 
and  sequestered  by  act  of  the  Legislature. 

The  United  States  Circuit  Court  in  Virginia  decided  in 
favor  of  the  American  debtors,  Hylton  and  others.  But  when 
the  case  came  up  on  appeal  before  the  full  Supreme  Court 
of  the  United  States  in  1795-1796,  that  decision  was  reversed, 
and  it  was  held  that  British  creditors  had  the  right  to  recover 
debts.  Justices  Chase,  Paterson,  Wilson,  and  dishing  each 
wrote  opinions  to  this  effect,  and  Justice  Iredell's  opinion  was 
a  qualified  one,  partly  favoring  both  sides  on  different  points. 
As  one  of  the  attorneys  for  the  American  debtors  in  this  case, 
John  Marshall  had  the  opportunity  of  learning  at  first  hand 
what  the  settled  court  law  on  the  subject  was  —  a  knowledge 
which,  as  we  shall  see,  he  was  not  slow  in  applying  to  his  own 
personal  benefit. 

The  mass  of  the  people  were  intensely  stirred  over  the  per- 
tinacious efforts  of  British  or  Tory  claimants  to  recover  pos- 
session of  confiscated  estates.  The  historic  case  of  Chisholm 
vs.  Georgia  arose  over  the  efforts  of  two  executors  in  South 
Carolina  to  regain  certain  confiscated  property  in  Georgia. 
The  question  at  issue  was  whether,  under  the  Constitution, 
the  citizens  of  another  State  could  sue  a  State.  Chief  Justice 
Jay  and  Justices  dishing,  Wilson  and  Blair  held  that  they 
could;  Iredell  dissented.11  Great  opposition  was  excited  by 

9  "  Correspondence,"  etc.,  "  of  John  Jay,"  Vol.  Ill :  486. 
"Dallas'  Reports,  Vol.  Ill:  195-285. 
11  Ibid.,  Vol.  II :  419-480. 


2O6  HISTORY  OF  THE   SUPREME   COURT 

this  decision  not  only  in  Georgia  (where  the  Grand  Jury  pre- 
sented it  as  a  grievance)  but  in  Massachusetts,  Pennsylvania 
and  other  States  where  the  resentment  over  the  efforts  to  re- 
cover confiscated  estates  was  acute.  Considerable  popular 
disturbances  followed  this  decision,  which  was  reversed  in 
1798  by  the  adoption  of  the  Eleventh  Amendment  to  the  Con- 
stitution of  the  United  States. 

Jay's  solicitude  for  the  interests  of  his  close  friends,  par- 
ticularly Nicholas  Cruger  and  Herman  Le  Roy  and  William 
Bayard,  may  be  learned  from  a  significant  letter  written  by 
him  from  London,  on  September  n,  1794,  to  Cruger.  This 
last-named  personage  was  Alexander  Hamilton's  foremost 
rich  patron.  LeRoy  and  Bayard  were  among  the  leading 
men  of  wealth  in  New  York  City.  As  we  have  seen  in  Chap- 
ter I,  they  were  associated  in  getting  fraudulent  titles  for 
large  areas  of  land  validated.12  The  judge  confirming  those 
titles  was  Judge  Benson,  another  intimate  friend  of  Jay.13 
The  Bayard  estates  were  confiscated  during  the  Revolution 
but  were  later  regained  under  the  provisions  of  Jay's  treaty. 

• 

A  "  Golden  Plan  "  fpr  Millions  Sterling. 

"  A  gentleman  in  Holland,"  wrote  Jay  to  Cruger,  "  has 
been  so  obliging  as  to  send  me  a  plan  to  make  my  fortune, 

12  William  Bayard,  born  in  1729,  entered  mercantile  life,  and  became 
one  of  the  richest  merchants  of  New  York.    He  was  the  owner  of  all 
the  land  on  which  the  present  city  of  Hoboken  is  built.     During  the 
Revolution  he  went  to  England,  and  his  estates  were  confiscated  and 
sold.     Two  of  his  sons,  John  and   Samuel,  entered  the  British  army 
and  attained  high  rank.     His  third  son,  William    (born  in  1764),  re- 
mained in  New  York,  succeeded  to  his  father's  business,  became  one  of 
the  largest  ship  owners  in  New  York,  was  President  of  the  Chamber 
of  Commerce  from  1810  to  1827,  and  a  director  of  the  Bank  of  America, 
and  other  banks.     His  daughter,  Elizabeth,  married  Stephen  Van  Rens- 
selaer   (the  younger).    It  was  to  William   Bayard's  country  seat   on 
Greenwich  Street  that  Hamilton  was  taken  after  his  duel  with  Burr. 
The  Livingstons,  Van  ,Rensselaers,  Bayards,  Schuylers,  Patefsons  and 
other  powerful  landed  families  were,  as  we  have  said,  closely  related  by 
marriage. 

13  See,  "  Correspondence  and  Public  Papers  of  John  Jay,"  Vol.  IV. 


FROM    JAY'S   RESIGNATION    TO    MARSHALL'S   ACCESSION          207 

I 

even  to  the  extent  of  many  millions  sterling."  Pleading  with 
many  expressions  of  regret  that  he  unfortunately  had  no 
mercantile  knowledge  necessary  for  the  execution  of  the  plan, 
Jay  then  went  on :  "  You  will  find  this  golden  plan  enclosed. 
If  the  extensive  concerns  in  which  you  are  already  engaged 
should  render  its  magnitude  inconvenient,  it  might  be  well 
to  let  olfr  friends  LeRoy  and  Bayard  share  in  it.  .  ."  14 

The  nature  of  this  "  golden  plan  "  is  not  stated  in  the  pub- 
lished letter,  but  we  note  that  it  was  of  a  mercantile  character, 
which  is  to  say  one  pertaining  to  international  commerce  in 
which  LeRoy  and  Bayard  were  engaged.  Those  who  may 
hold  to  the  theory  that  Jay  when  in  London  was  still  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  may  well 
give  this  letter  consideration.  While  acting  as  special  envoy 
in  England  negotiating  a  treaty  dealing  extensively  with  ques- 
tions of  commerce,  Jay  receives  and  forwards  to  his  friends 
a  plan  for  reaping  millions  of  sterling  profit.  That  it  was  not 
an  airy,  conjectural  proposal  is  seen  by  his  use  of  the  words 
"  golden  plan  " ;  Jay  was  habituated  to  great  restraint  in  talk- 
ing and  writing. 

One  other  fact  is  certain,  which  fact  bears  the  greatest 
relevance  and  importance  to  decisions  of  the  Supreme  Court 
under  Chief  Justice  Marshall,  and,  as  will  be  seen,  to  Mar- 
shall's own  covert  interests. 

When  Jay  was  arranging  the  treaty  in  London,  the  matter 
of  confiscated  estates  was  one  of  the  questions  considered  by 
him.  On  September  13,  1794,  Jay  wrote  in  a  private  letter  to 
Washington  that  "...  I  learn  that  Virginia  is  escheating 
British  property  and  I  hear  of  other  occurrences  which  I  re- 
gret. .  .  ." 15  Three  days  later  Jay  wrote  to  Hamilton 
similarly.18  In  a  private  letter,  dated  December  18,  1794, 
Washington  wrote  to  Jay :  "  The  Virginia  escheats  of  British 

n  Ibid.,  Vol.  IV:  57. 

^"Correspondence  and  Public  Papers  of  John  Jay,"  Vol.  IV:  59. 
10  Ibid.,  115.     Jay's  treaty  was  concluded  on  Nov.  19,  1794,  and  ratified 
by  the  United  States  on  Aug.  18,  1795. 


2O8  HISTORY   OF   THE    SUPREME   COURT 

property  do  not,  I  am  informed,  stand  upon  the  ground  as 
related  to  you ;  but  as  I  am  not  accurately  enough  read  in  the 
law  respecting  these  escheats  to  be  precise  in  my  recital  of  it, 
I  will  request  the  Secretary  of  State  to  give  you  the  principles 
thereof."  " 


Jay's  Treaty  Denounced. 

Jay  carried  on  his  negotiations  in  England  with  Lord  Gren- 
ville,  Secretary  of  Foreign  Affairs,  a  personal  friend.  It  is 
not  necessary  here  to  dwell  upon  all  the  various  phases  of  the 
treaty  of  1794  agreed  upon  by  Jay  and  Grenville ;  only  one 
part  of  that  treaty  is  of  vital  consequence  to  this  work,  and 
to  the  results  of  this  part  we  shall  have  occasion  to  revert  in 
Chapters  VI  and  VII.  By  the  provisions  of  Jay's  treaty, 
British  creditors  were  to  be  compensated  for  losses  caused  by 
laws  of  any  of  the  States  obstructing  the  collection  of  debts 
contracted  prior  to  the  Revolutionary  war ;  the  citizens  of  each 
country  were  to  enjoy  the  right  to  hold  and  convey  land  in 
the  territories  of  the  other ;  and  debts  contracted,  or  engage- 
ments made,  by  the  citizens  of  the  one,  with  the  other,  coun- 
try, were  not  to  be  impaired  in  case  of  national  differences. 

The  ultimate  purport  of  these  clauses  the  generality  of  the 
American  people  did  not  clearly  perceive.  They  could  not 
foresee  the  remarkable  extent  to  which  the  Supreme  Court  of 
the  United  States  would  go  in  using  those  clauses  as  a  lever 
for  a  construction  by  which  confiscated  estates  could  be  re- 
covered. 

But  they  did  see  enough  to  infuriate  them.  Even  the  com- 
mercial class  and  the  Southern  plantation  owners  were  exas- 
perated; in  return  for  a  few  paltry,  insignificant  concessions 
granted  by  England  for  a  period  of  twelve  years,  the  United 
States,  under  Jay's  treaty,  agreed  not  to  export  molasses, 
sugar,  coffee,  cocoa  or  cotton  to  any  part  of  the  world.  An- 

17  "Correspondence  and  Public  Papers  of  John  Jay,"  Vol.  IV:  151. 


FROM    JAYS    RESIGNATION    TO    MARSHALL  S   ACCESSION          2OO, 

other  grievance  of  the  Southern  slaveholders  was  that  the 
treaty  contained  no  provision  for  indemnification  for  negroes 
carried  away  by  the  British  during  the  Revolutionary  war. 
The  West  India  trade,  for  which  merchants  of  Boston,  Salem 
and  other  parts  were  so  desirous,  was  granted  only  on  con- 
dition that  it  should  be  carried  on  in  vessels  of  less  than  sev- 
enty tons  burden.  No  promise  was  exacted  from  England  to 
desist  from  searching  American  merchantmen,  or  to  refrain 
from  the  seizure  of  British-born  sailors.  In  Philadelphia  and 
elsewhere  Jay  was  burned  in  effigy ;  in  more  than  one  instance 
an  effigy  of  Jay  was  labeled  in  this  wise  or  similar  language ; 
"  Come  up  to  my  price  and  I  will  sell  you  my  country."  A 
copy  of  the  obnoxious  treaty  was  consigned  to  the  flames  by  a 
crowd  in  front  of  Jay's  own  house. 

The  opposition  of  the  planters  and  commercial  interests 
finally  had  its  effect  in  the  Senate  which  rejected  the  West 
Indies'  and  the  export  clauses,  but  the  popular  opposition  to 
the  treaty,  as  a  whole,  was  ignored.  With  the  exception  of 
those  clauses,  the  treaty  was  ratified.  No  doubt  the  charge 
that  Jay  had  sold  out  for  a  price  was  a  calumny,  although  it 
revealed  what  the  people  were  ready  to  believe  of  him,  and  the 
repute  in  which  he  was  held.  A  much  more  dominating  in- 
centive than  a  venal  one  influenced  Jay,  mercenary  as  he  was ; 
every  instinct,  interest,  prejudice  and  creed  of  his  class  was 
concentrated  in  him ;  his  conduct,  as  a  whole,  proceeded  from 
class  motives,  and  was  uniformly  determined  by  them.  In- 
stances were  not  lacking,  however,  in  which  his  acts  seemed 
to  justify  grave  suspicions  that  he  was  personally  profiting. 

Livingstons  Change  Policies  Overnight. 

Meanwhile  a  great  change  affecting  the  status  of  both  po- 
litical parties  had  happened  in  New  York  State.  Most  of 
the  immensely  powerful  Livingston  family  had  abruptly 
shifted  from  the  Federalist  to  the  Republican  party. 


2IO  HISTORY   OF   THE    SUPREME    COURT 

According  to  Hammond,  this  transference  had  taken  place 
as  early  as  the  year  1790,  when  Chancellor  Robert  R.  Living- 
ston, carrying  with  him  his  immediate  connections,  known  as 
the  "  Livingston  family,"  went  over  to  the  Republican  camp, 
in  opposition  to  Hamilton.  The  real  cause,  as  ascribed  by 
Hamilton's  friends,  was  (Hammond  wrote)  Chancellor  Liv- 
ingston's disappointment  at  not  being  appointed  Chief  Justice 
of  the  Supreme  Court  of  the  United  States.  Hammond  re- 
lates that  he  was  informed  "  that  the  family  one  evening  had 
a  meeting  for  the  purpose  of  deliberating  on  the  subject,  and 
that  the  result  of  their  deliberations  was  such,  that  the  next 
morning  every  member  of  it  took  a  position  in  the  ranks  of 
the  Republican  party,"  except  some  Livingstons  in  Columbia 
County.18 

If  this  explanation  is  correct  it  again  reveals  the  inordinate 
appetite  of  the  Livingstons  for  self-advantageous  positions  of 
power,  since  they  had  already  had  two  representatives  on  the 
Supreme  Court  bench  (composed  of  five  members  in  all),  in 
the  persons  of  John  Jay  and  William  Paterson.  Perhaps  what 
Hammond  means  is  that  the  Livingstons  expected  Chancel- 
lor Robert  R.  Livingston  to  be  appointed  Chief  Justice  when 
Jay  resigned;  it  was  about  that  time  that  distinct  political 
party  alignments  began  to  form,  developing  in  Washington's 
second  administration  into  the  Federalist  and  the  Republican 
parties.  Although  there  might  have  been  some  rankling 
feeling  of  disgruntlement  over  Chancellor  Livingston's  non- 
appointment,  yet  the  extreme  political  sagacity  of  the  Liv- 
ingstons argued  a  much  broader  and  keener  outlook  as  a  cause 
for  their  change  of  front.  As  events  moved  on,  shrewd  ob- 
servers could  descry  signs  that,  while  the  Federalists  might 
still  hold  some  years  more  of  power,  defeat  was  foreshad- 
owed. Exercising  their  traditional  political  shrewdness,  the 
Livingstons  always  took  care  to  array  themselves  on  the  vic- 

18  Hammond's  "  Political  History  of  the  State  of  New  York,"  Vol.  I : 
106-107. 


FROM    JAY'S   RESIGNATION    TO    MARSHALL'S    ACCESSION          211 

torious  side.  What  was  still  more  to  their  purpose,  they  did 
not  neglect  to  have  their  able  representatives  and  connections 
on  both  sides,  so  that,  whichever  party  won,  the  family  would 
be  in  a  position  to  draw  benefit. 

Between  the  large  landholders  and  politico-capitalists  of  both 
political  parties  there  was,  in  action,  only  a  fine  exoteric  differ- 
ence of  purpose.  In  words  they  might  take  violent  issue  with 
each  other,  but  in  deed  they  stood  stanchly  together.  Both 
indiscriminately  joined  in  granting  the  other  great  tracts  of 
public  land,  and  bank,  canal,  turnpike,  insurance  and  other 
charters.  In  political  creed,  as  affecting  their  own  economic 
interests,  or  those  of  their  particular  or  sectional  constitu- 
encies, they  often  had  cause  to  differ,  out  of  which  differences 
grew  what  seemed  to  be  overshadowing  issues  involving  the 
very  fate  of  mankind.  But  while  such  of  the  working  class 
as  were  enfranchised  were  duped  into  supporting  one  side 
or  the  other,  the  leaders  of  both  political  parties  obstinately 
refused  to  pass  any  laws  ameliorating  the  condition  of  the 
workers,  at  the  same  time  using  legislation  to  manufacture 
laws  vesting  in  themselves  enormous  and  perpetual  powers 
and  privileges.19 

Jay  and  the  Livingston  Steamboat  Monopoly. 

Whatever  might  have  been  Chancellor  Livingston's  sense 
of  disappointment  from  failure  to  appoint  him  Chief  Justice, 
he  and  Jay,  Hamilton's  close  friend,  not  only  kept  on  very 
good  terms,  but  Jay,  when  Governor  of  New  York  State, 
largely  helped  to  put  through  an  extraordinary  act  for  the 
benefit  of  Chancellor  Livingston,  his  former  law  partner. 

To  describe  adequately  this  fact  and  other  pertinent  facts 
dealing  with  the  further  career  of  Jay  and  various  other  per- 

10  The  rush  to  get  charters  of  all  descriptions  from  the  various  Legis- 
latures was  indescribable.  Already,  in  1791,  the  Legislature  of  Penn- 
sylvania, for  example,  was  driven  into  complaining  that  most  of  its 
time  was  consumed  in  enacting  laws  to  incorporate  private  associations. 
—  Carey  and  Bioren's  "  Pa.  Laws,"  Vol.  IV :  28. 


212  HISTORY   OF   THE    SUPREME    COURT 

sonages,  a  digression  is  necessary  here  from  the  consecutive 
narrative  of  the  Supreme  Court  of  the  United  States.  It  is 
an  integral  part  of  this  work  to  portray  individualities  only 
in  so  far  as  they  represent  forces.  To  illumine  the  nature  of 
those  forces,  and  the  enlarging  or  changing  classes  embodied 
in  them,  it  is  also  necessary  to  describe  the  measures  by  which 
those  ruling  forces  acquired  more  power,  and  the  means  by 
which  successive  divisions  of  the  capitalist  class  became  dom- 
inant. 

Jay  was  nominated  for  Governor  of  New  York  State,  and 
Stephen  Van  Rensselaer  for  Lieutenant-Go vernor,  in  1795; 
thus  two  of  the  most  powerful  landed  families  in  the  State, 
and,  in  fact,  in  the  whole  country,  composed  the  heads  of  the 
Federalist  ticket.  Hammond  says  that  Jay  did  not  want  to 
be  a  candidate,  but  that  probably  Hamilton,  Schuyler  and 
others  persuaded  him  to  change  his  resolution.20  Defeated  in 
the  year  1792,  Jay  was  elected  Governor  in  the  next  elec- 
tion, in  I795-21  As  Governor,  Jay  was  the  President,  ex-of- 
ficio,  of  a  body  called  the  Council  of  Revision,  which  had  the 
power  of  approving  or  vetoing  all  laws. 

Now  it  happened  that  on  March  19,  1787,  the  New  York 
Legislature  had  passed  an  act  granting  to  John  Fitch  the  sole 
and  exclusive  right  of  navigating  craft,  propelled  by  steam,  in 
the  waters  of  New  York.  Ten  years  later,  Chancellor  Robert 
R.  Livingston  came  forward  with  the  claim  that  he  was  the 
possessor  of  a  mode  of  propelling  boats  by  steam.  Starting 
with  the  remarkable  assumption  that  Fitch  was  dead,  although 
there  was  no  legal  proof  to  that  effect,  the  New  York  Leg- 
islature, on  March  27,  1798,  passed  an  act  repealing  the  ex- 
clusive powers  given  to  Fitch,  and  conferring  similar  privi- 
leges, for  a  term  of  twenty  years,  on  Robert  R.  Livingston. 
The  act  was  subject  to  final  action  by  the  Council  of  Revision, 
which,  at  the  time,  was  composed  of  Governor  Jay,  Chief  Jus- 

20  "  Political  History  of  the  State  of  New  York,"  Vol.  1 :  55. 

21  It  was  after  being  elected  Governor  that  Jay  formally  resigned  as 
Chief  Justice. 


FROM    JAY'S   RESIGNATION    TO    MARSHALL  S   ACCESSION          213 

tice  Lansing  of  the  State  Supreme  Court,  Judge  Lewis  and 
Judge  Benson  —  of  the  same  court,  and  Chancellor  Robert  R. 
Livingston  himself. 

When  the  bill  came  before  the  Council  of  Revision,.  Living- 
ston, not  caring  to  hazard  the  chance  of  impeachment  for  taking 
part  in  voting  for  a  bill  benefiting  himself  exclusively,  kept 
away.  But  his  associates  attended  satisfactorily  to  the  business. 
After  making  a  show  of  objection  to  the  bill  because  the  facts 
as  to  the  grounds  from  which  Fitch's  forfeiture  was  to  arise, 
had  not  been  found  by  some  due  process  of  law,  the  Council  of 
Revision  then  sustained  both  the  act  itself  and  its  constitu- 
tionality.23 This  finding  was  made  the  basis  for  further  laws 
in  favor  of  Livingston,  after  Jay  ceased  to  be  Governor.  We 
shall  proceed  to  tell  what  those  laws  were. 

More  Remarkable  Laws  for  Livingston. 

Robert  R.  Livingston  was  not  an  inventor;  he  had  never 
been  anything  but  a  rich  man  and  politician.  Did  he  cause 
this  bill  to  be  passed  so  as  to  have  a  means  of  compelling 
Robert  Fulton  to  come  to  terms?  This  does  not  appear.  At 
any  rate,  on  April  5,  1803,  the  Legislature  of  New  York  passed 
another  act  by  which  it  was  declared  that  the  rights  and  privi- 
leges granted  to  Robert  R.  Livingston,  by  the  act  of  1798, 
should  be  extended  to  him  and  Robert  Fulton  for  a  period 
of  twenty  years  from  the  passage  of  the  act  of  1803.  Five 
years  later, —  on  April  n,  1808, —  an  even  more  decisive  law 
was  enacted.  It  extended  the  Livingston  and  Fulton  monop- 
oly still  further,  and  it  forbade  all  persons  to  navigate  any 
steamboat  or  vessel  without  securing  a  special  license  from 

22  In  Chapter  I  we  have  given  a  remarkable  decision  made  by  Judge 
Benson  at  about  this  time  in  a  noted  case  by  which  he  justified  title  to 
land  avowedly  obtained  by  fraud.     As  for  Judge  Lewis,  he  had  studied 
law  with  John  Jay,  and  was  related  to  the  Livingston  family  by  marriage. 

23  For  the  full  history,  see  Wheaton's  Reports,  Supreme  Court  of  the 
United  States,  Vol.  IX :  1-240. 


214  HISTORY  OF   THE   SUPREME   COURT 

the  firm  of  Livingston  and  Fulton.24  If  such  a  license  was 
not  obtained,  the  offending  boat  or  vessel  was  to  be  forfeited.25 

These  provisions  were  extraordinary  enough,  but  even 
more  extraordinary  were  those  of  the  succeeding  act  of  April 
9,  1811.  This  act  provided  that  if  the  provisions  of  the  former 
act  were  violated,  Livingston  and  Fulton,  in  case  any  other 
steamboat  navigated  their  territory,  should  have  an  action  at 
law  for  such  boat  as  if  they  themselves  had  been  dispossessed 
by  force.  The  act  further  declared  that  they  could  immedi- 
ately get  an  injunction.26 

These  cumulative  acts  raised  an  immense  commotion  in  the 
mercantile  world.  Everywhere  the  great  landowners,  with 
the  revenues  from  land  obtained  by  fraud,  were  breaking  out 
of  the  bounds  of  being  mainly  landowners,  and  were  becom- 
ing transformed  into  owners  of  banks,  turnpikes,  bridges, 
navigation  companies  and  insurance  companies.  Just  as  in 
the  old  days  their  sphere  was  one  of  part  landowner,  part 
seignorial  trader,  so  now  they  hastened  to  avail  themselves 
of  each  freshly  discovered  resource,  each  new  invention,  each 
newly-developed  economic  institution.27  But  Livingston  and 
Fulton,  in  getting  the  steamboat  monopoly  in  New  York 
waters  (which  meant  the  profitable  Hudson  River,  Long  Island 
Sound  and  other  navigable  water  trade),  came  gradually  into 

24  In    1806   Robert    Fulton   married   Harriet   Livingston,    a   niece   of 
Chancellor    Livingston.     By    her    he   had    four    children. —  Houghton's 
"  Kings  of   Fortune,"  284.     Their  descendants  are  among  the   richest 
families  of  New  York. 

25  Wheaton's  Reports,  Supreme  Court  of  the  United  States,  Vol.  IX : 
1-240. 

20  Ibid. 

27  Thus,  to  give  one  example  of  a  large  number  of  instances, 
Nicholas  Cruger  was  one  of  the  richest  landholders  in  New  York.  His 
will,  made  in  February,  1791,  revealed  that  his  estate  amounted  to 
$644,814.15.  Of  this  amount,  $122,905.62  was  in  real  estate  —  exclusive 
of  the  land  bought  by  Cruger  after  making  his  will.  The  dower  estate 
was  valued  at  $71,713.  Cruger  held  $141,779.69  in  stocks,  including 
shares  in  the  United  Insurance  Company,  the  Bank  of  the  United  States, 
Hamilton's  Bank  of  New  York,  the  Bank  of  Albany  and  Aaron  Burr's 
Manhattan  Company.  Various  other  properties  made  up  the  total  in- 
ventory.—  Johnson's  Reports,  Court  of  Errors  [N.  Y.],  Vol.  VII:  568. 


FROM    JAY  S    RESIGNATION    TO    MARSHALL'S   ACCESSION          215 

conflict  with  nascent  capitalists,  not  nearly  as  rich  as  they, 
but  equally  determined  and  aggressive.  The  whole  mercan- 
tile class  looked  with  alarm  upon  acts  by  which  this  great  new 
method  of  transportation  was  monopolized  by  two  men,  with 
probably  influential  others  covertly  sharing  the  profits. 

Prevailing  Legislative  Corruption. 

The  legislative  acts  were,  denounced  as  unconstitutional. 
The  owners  of  the  monopoly  fell  back  in  triumph  upon  that 
famous  constitutional  clause  inserted  by  Justice  James  Wil- 
son that  no  legislature  could  pass  laws  impairing  the  obliga- 
tion of  a  contract.  But  if  this  claim  was  true  of  Livingston 
and  Fulton's  monopoly,  why  did  it  not  apply  with  equal  force 
to  Fitch's?  Livingston  and  Fulton  also  pointed  out,  as  though 
the  argument  were  invincible,  that  no  less  a  jurist  than  John 
Jay,  the  first  Chief  Justice  of  the  Supreme  Court  of  the 
United  States,  had  in  the-  Council  of  Revision  pronounced 
the  original  act  constitutional,  and  that  those  great  authorities, 
Judges  Lansing,  Lewis  and  Benson,  had  agreed  with  him. 

To  give  an  insight  into  the  real  methods  by  which  legisla- 
tures were  induced  to  pass  such  acts,  a  few  facts  will  be  given 
as  to  certain  other  charters  granted  by  the  New  York  Legisla- 
ture during  that  period. 

The  bill  chartering  the  Manhattan  Bank,  in  which  Aaron 
Burr  and  De  Witt  Clinton  28  were  prominently  interested,  was 
passed  in  1799  under  the  philanthropic  guise  of  being  a  meas- 
ure to  incorporate  a  company  to  supply  pure  water  to  New 
York  City  with  the  plausible  pretext  of  diminishing  future 

28  It  was  De  Witt  Clinton  who,  some  years  afterward,  drew  the 
charter  of  John  Jacob  Astor's  American  Fur  Company,  a'nd  it  was 
through  De  Witt  Clinton's  exertions  that  it  became  a  law.  For  an 
extended  description  of  the  long-continued  debauching,  swindling  and 
murdering  of  Indians,  done  upon  the  strength  of  this  charter,  see  Vol. 
I,  "  History  of  the  Great  American  Fortunes."  De  Witt  Clinton  was  a 
nephew  of  Governor,  later  United  States  Senator,  George  Clinton. 
After  serving  as  Mayor  of  New  York  City,  De  Witt  Clinton  repeatedly 
became  Governor  of  New  York  State. 


2l6  HISTORY  OF  THE   SUPREME   COURT 

ravages  by  yellow  fever.  As  we  have  seen,  members  of  the 
legislature,  including  Senator  (later  Judge)  Spencer,  were 
openly  charged  with  taking  bribes.  Jay,  as  president  of  the 
Council  of  Revision,  signed  that  bill,  probably,  we  may  con- 
jecture, in  return  for  the  help  of  Burr  and  Clinton  in  passing 
the  act  granting  the  steamboat  monopoly  to  Livingston.  Re- 
ciprocal exchanges  were  usual  among  politicians. 

Six  years  after  the  passage  of  the  Manhattan  Company  act, 
the  Mercantile  Bank  received  a  thirteen  years'  charter.  It 
was  publicly  charged  by  various  members  of  the  Assembly  that 
this  charter  was  secured  by  bribery  —  charges  substantially 
proved  before  the  legislative  investigating  committee.29  And 
who,  it  may  be  asked,  was  the  organizer  and  the  president 
of  the  Merchants'  Bank,  founded  and  chartered  under  similar 
circumstances  at  this  time?  No  less  a  personage  than  Oliver 
Wolcott,  friend  and  admirer  of  Hamilton ;  the  successor  of 
Hamilton  as  United  States  Secretary  of  the  Treasury,  in 
1795;  and  the  intimate  friend  of  Oliver  Ellsworth,  who  fol- 
lowed Jay  as  Chief  Justice  of  the  Supreme  Court  of  the  United 
States. 

In  1811,  the  New  York  Legislature  chartered  the  Mechanics' 
Bank,  with  a  time  limit,  under  peculiar  circumstances  indica- 
ting bribery.  Charges  of  corruption  were  so  continuous  that 
the  Legislature,  in  1812,  in  a  fine  outburst  of  ostentatious 
virtue,  passed  a  resolution  compelling  each  member  to  pledge 
himself  that  he  had  neither  taken  nor  would  take,  "  any  re- 
ward or  profit,  direct  or  indirect,  for  any  vote  or  any  meas- 
ure." 30  After  this  rhetorical  effusion,  intended  to  salve  the 
public,  the  Legislature  proceeded,  in  that  very  year,  to  charter 
the  Bank  of  America.  Flagrant  charges  of  corruption  were 
made,  and  an  investigation  was  held.  One  Assemblyman  tes- 
tified that  he  had  been  offered  the  sum  of  $500  "besides  a 

29  Journal  of  the  (New  York)   Senate  and  Assembly,  1805:  351  and 
399- 

30  Ibid.,  1812:  134. 


FROM    JAY'S   RESIGNATION    TO    MARSHALL'S   ACCESSION          217 

handsome  present  for  his  vote."  31  Oliver  Wolcott  was  the 
chief  organizer  of  this  bank  also,  and  remained  its  president 
for  two  years.32  The  chartering  of  the  Chemical  Bank,  in 
1824,  was  accomplished  by  bribery,  according  to  the  testimony 
before  a  legislative  investigating  committee ;  the  promoters  of 
the  Chemical  Bank  set  aside  a  considerable  sum  of  money, 
and  $50,000  in  stock  for  the  bribery  fund.33  The  charter  of 
the  notorious  Seventh  Ward  Bank  was  later  likewise  obtained 
by  bribery. 

These  parallel  circumstances  of  the  securing  of  other  char- 
ters may  tend  to  explain  why  Livingston  and  Fulton  were  able 
to  get  such  amazing  laws.  The  final  outcome  of  the  long 
litigation  growing  out  of  the  Livingston  and  Fulton  steam- 
boat monopoly  is  described  later  in  this  work,  comprehending, 
as  it  does,  one  of  the  most  noted  of  Chief  Justice  Marshall's 
decisions. 

Suffice  to  say  here  that  it  was  generally  believed  that  high 
jurists  and  politicians  were  indirect  beneficiaries  of  that 
monopoly ;  for  politicians  to  be  stockholders  in  companies  to 
which  they,  as  legislators,  had  granted  charters,  was  not  un- 
common, nor  was  it  unusual  for  judges  to  hold  stock. 

At  Jay's  death  in  1829,  Daniel  Webster  said  of  him,  in  the 
customary  high-flown  rhetoric  of  the  day :  "  When  the  spot- 
less ermine  of  the  judicial  robe  fell  on  John  Jay,  it  touched 
nothing  less  spotless  than  itself."  The  facts,  however,  tell 
otherwise.  Webster  would  have  liked  that  generation  and 
future  generations  to  believe  his  encomium  of  Jay.  The  de- 
cisions of  Jay  were  useful  as  precedents  to  Webster,  the  most 
active  corporation  lawyer  of  his  day,  the  attorney  for  schemes 
and  projects  some  of  which  Jay  himself  had  helped  to  put 

31  Ibid.,  259-260. 

32  The  Wolcott  family  was  one  of  the  large  landed  interests  in  Con- 
necticut and  elsewhere.     It  was  one  of  the  oligarchy  that  had  almost 
hereditarily  ruled  Connecticut  politically  for  decades.     Oliver  Wolcott 
returned  to  Connecticut,  and  engaged  in  the  manufacture  of  woolens  in 
Litchfield.     He  became  Governor  of  Connecticut,  1818-1827. 

33  Journal  of  the  [N.  Y.]  Senate,  1824:  1317-1350. 


2l8  HISTORY    OF   THE    SUPREME    COURT 

through,   and   the   ally   by   marriage   and   interest,   of   Jay's 
class.84 


The  Senate  Rejects  Rutledge. 

When  Jay  resigned  the  Chief  Justiceship  of  the  Supreme 
Court,  John  Rutledge  of  South  Carolina  was  appointed  to 
succeed  him.  Rutledge's  appointment  was  what  might  be 
termed  an  untimely  anticipation  of  a  period  not  yet  arrived. 
So  stanchly  did  Rutledge  represent  the  interests  of  the  large 
Southern  slaveholders  that  in  the  Federal  Constitutional  Con- 
vention, he  had  —  to  quote  the  words  of  a  eulogist  — "  stood 
firm  and  unyielding  to  what  he  esteemed  the  substantial  inter- 
ests of  his  section  of  the  country."  35  He  had  been  one  of  the 
delegates  refusing  to  concede  to  the  proposal  for  the  immedi- 
ate prohibition  of  the  importation  of  negro  slaves.  "  The  peo- 
ple of  North  Carolina,  South  Carolina  and  Georgia,"  he  had 
then  declared,  "  will  never  agree  to  the  proposed  Constitution, 
unless  their  right  to  import  slaves  be  untouched."  He  had 
finally  acceded  in  the  Convention,  however,  to  the  proposal 
that  the  importation  of  slaves  should  not  be  prohibited  prior 
to  the  year  i8o8.36 

But  although  representing  the  great  slave-owning  landed 
proprietors  of  the  South,  Rutledge  was  not,  at  this  juncture, 
viewed  with  approval  by  the  great  landowners  of  the  North, 

34  After   the   death   of   his   first   wife,   Webster   married    Catherine, 
daughter  of  Herman  Le  Roy.     This  was  the  same  Le  Roy  who,  as  de- 
scribed in  Chapter  I,  was  one  of  tKose  dispossessing  settlers  by  securing, 
in  virtue  of  court  decisions,  great  tracts  of  New  York  land  obtained  by 
fraud  and  corruption  before  the  Revolution.     Le  Roy  was  the  founder 
of  the  great  commercial  firm  of  Le  Roy,  Bayard  and  Company,  trading 
with  many  parts  of  North  and  South  America.     He  was  one  of  fifteen 
men  in  New  York  City  who,  in  1815,  could  boast  of  owning  a  carriage. 
As  we  have  seen,  Le  Roy  and  Bayard  were  Jay's  intimate  business  asso- 
ciates as  well  as  his  friends,  and  we  have  quoted  previously  from  Jay's 
letter  asking  Cruger  to  let  them  share  in  a  certain  "  golden  plan  "  for 
making  "  millions  sterling  "  profits. 

35  Van  Santvoord's  "  Chief  Justices,"  194. 
»«  Madison  Papers,  Vol.  Ill:  1536. 


FROM    JAY'S   RESIGNATION    TO    MARSHALL  S   ACCESSION         219 

who  by  force  of  more  numerical  representation  in  the  Senate, 
dominated  the  Government. 

Already,  the  great  economic  struggle  between  the  two  con- 
flicting capitalist  systems  —  that  of  so-called  free  white  labor 
in  the  North,  and  that  in  the  South  of  negro  slavery  —  had 
begun.  While  the  Southern  capitalists  were  demanding  that 
the  right  to  import  slaves  be  continued,  the  Northern  capi- 
talists were,  as  we  have  seen,  as  early  as  1775,  deliberately 
and  with  the  most  careful  calculation,  setting  out  to  utilize 
woman  and  child  labor  in  factories,  as  a  system,  knowing  it 
to  be  cheaper  than  slave  labor. 

The  conflict  between  these  divergent  systems  had  not,  at 
the  time  of  Rutledge's  appointment,  widened  into  the  threaten- 
ing stage  that  it  did  later,  when  it  became  so  acute  that  the 
Southern  slaveholders  exerted  every  influence  to  dominate  the 
Government,  especially  the  Supreme  Court  of  the  United 
States.  Rutledge,  moreover,  had  made  himself  obnoxious  to 
the  majority  of  the  United  States  Senate  by  denouncing  the 
Jay  treaty.  This  he  opposed  because  it  contained  no  provision 
indemnifying  slaveholders  for  negroes  appropriated  by  the 
British,  and  because  that  treaty  would  stop  the  exportation  of 
cotton. 

The  Senate  rejected  Rutledge's  appointment.37  For  some 
years  his  mind  had  showed  symptoms  of  impairment ;  when  the 
news  of  his  rejection  reached  Rutledge,  it  totally  gave  way, 
and  he  soon  died. 

Ellsworth  Succeeds  Jay  as  Chief  Justice. 

The  appointment  of  Oliver  Ellsworth,  of  Connecticut,  as 
Chief  Justice  of  the  Supreme  Court  of  the  United  States,  was 

37  The  appointment  of  Rutledge  was  a  recess  appointment.  The  note 
in  III  Dallas'  Reports,  121,  reads:  "A  commission  bearing  date  the 
ist  July,  1795,  was  read  by  which,  during  the  recess  of  Congress,  John 
Rutledge,  Esq.,  was  appointed  Chief  Justice,  till  the  end  of  the  next 
session  of  the  Senate."  Before  the  rejection  of  his  nomination,  Rut- 
ledge  presided  as  Chief  Justice  in  the  determination  of  at  least  one 
case  —  that  of  Talbot  vs.  Jackson. 


22O  HISTORY   OF   THE   SUPREME   COURT 

wholly  satisfactory  to  both  the  landowning  class,  and  to  its 
auxiliary  outgrowth,  the  banking  interest.  The  same  Sen- 
ate rejecting  Rutledge's  appointment  hastened  to  confirm  Ells- 
worth's. He  was  commissioned  Chief  Justice  on  March  4, 
1796. 

Beginning  as  a  rather  obscure  lawyer,  Ellsworth  had  in- 
gratiated himself  into  the  favor  of  the  Wolcotts,  the  Trum- 
bulls  and  other  powerful  Connecticut  families.  Constituting 
the  coterie  owning  great  landed  estates  in  Connecticut,  these 
families  had  governed  that  Colony  and  State  for  generations 
as  though  it  were  their  private  preserve.  Like  the  Livingstons 
in  New  York,  they  knew  how  to  appropriate  the  highest  official 
positions  for  themselves,  and  retain  them  in  the  family  circle. 
As  for  Ellsworth,  he  had  married  into  the  Wolcott  family,  and 
became  a  man  of  notable  fortune. 

As  a  member  of  the  Continental  Congress,  Ellsworth  had 
been  one  of  the  group  promoting  the  chartering  of  Morris' 
Bank  of  Pennsylvania.  Serving  as  the  chairman  of  the  com- 
mittee of  the  Continental  Congress  reporting  in  the  matter, 
Ellsworth  was,  according  to  his  eulogist  Van  Santvoord,  one 
of  Morris'  "  most  ardent  and  efficient  coadjutors."  Conspicu- 
ous in  the  Continental  Congress  in  pushing  the  original  charter 
of  the  Bank  of  North  America,  Ellsworth  was  not  unaware 
of  the  quick- following  frauds;  and  when  James  Wilson 
proposed  that  ingenious  constitutional  clause  of  his,  Ellsworth 
knew  to  an  accuracy  what  it  really  meant  and  how  it  would 
be  applied,  not  less  so  than  Wilson,  Clymer,  Fitzsimmons, 
Gouverneur  Morris  and  his  partner  Robert  Morris,  four  of 
whom,  as  we  have  seen,  were  openly  associated  with  that  bank, 
and  one  indirectly.  In  that  convention  Ellsworth,  be  it  said  to 
his  credit,  made  no  effort  to  disguise  his  real  attitude ;  he  was 
one  of  the  boldest  in  implying  his  contempt  for  the  people,  and 
in  urging  the  policy  of  deluding  the  people  with  a  sop.  He 
favored  a  yearly  election  for  members  of  the  House  of  Rep- 
resentatives;  the  people,  he  said,  were  fond  of  frequent  elec- 


FROM    JAY'S    RESIGNATION    TO    MARSHALL  S   ACCESSION         221 

tions,  and  might  safely  be  indulged  in  one  branch  of  Con- 
gress.38 

In  the  Connecticut  Convention,  called  to  decide  upon  the 
Constitution,  Ellsworth  argued  strenuously  for  its  adoption. 
He  and  Oliver  Wolcott  (whose  later  Merchants'  Bank  and 
Bank  of  America  charters  were  obtained  by  bribery,  as  already 
noted)  served  together  on  the  Commission  to  settle  the  claims 
of  Connecticut  against  the  Federal  Government.  Both  were 
concerned,  too,  in  that  fraudulent  disposition  by  Connecticut 
of  its  great  area  of  land  in  Ohio. 

Ellsworth  had  long  been  one  of  the  most  powerful  politicians 
in  Connecticut,  as  well  at  the  same  time  as  in  the  National 
Government.  He  had  been  an  Attorney-General  of  Connecti- 
cut. From  1780  to  1784  he  had  been  a  member  of  the  Gov- 
ernor's Council,  and  from  1784  to  1789  one  of  the  judges  of 
the  Supreme  Court  of  Connecticut.  As  a  United  States  Sena- 
tor he  was  a  member  of  the  select  committee  to  which  Hamil- 
ton's refunding  plan  was  referred,  and  was  one  of  the  most 
active  supporters  of  that  scandalous  scheme.  He,  also,  was 
on  the  select  committee  which  reported  favorably  on  Hamil- 
ton and  Morris'  plan  for  the  incorporation  of  the  Bank  of 
the  United  States.  When  the  question  came  up  in  Congress 
as  to  the  proper  title  for  the  President  of  the  United  States, 
Ellsworth  was  a  member  of  a  committee  of  three  of  the  Senate 
reporting  that  the  President  ought  to  be  addressed  as,  "  His 
Highness,  the  President  of  the  United  States  and  Protector 
of  Their  Liberties."  30  This  proposed  title,  so  strongly  smack- 
ing of  monarchism,  was  rejected  by  the  House  of  Representa- 
tives. It  is  written  of  Ellsworth  that  he  acquired  a  degree  of 
wealth  "  at  that  time  rare  in  Connecticut." 

Ellsworth  remained  Chief  Justice  for  a  few  years  only; 
and  were  it  not  that  he  handed  down  opinions  deciding  that 
debts  due  to  British  subjects  were  recoverable,  hardly  any- 

38  Madison  Papers,  Vol.  II :  846  and  929. 

39  Van  Santvoord,  p.  226. 


222  HISTORY  OF  THE   SUPREME   COURT 

thing  that  he  otherwise  did  was  considered  worthy  of  citation. 
In  the  annals  of  legal  lore  he  occupies  an  obscure  posi- 
tion, possibly,  for  one  strong  reason,  because  of  the  over- 
shadowing vital  contrast  afforded  by  his  successor's  masterful 
ability,  performances  and  long  reign. 

Bushrod  Washington's  Appointment. 

Of  the  two  appointments  as  Associate  Justices  made  by 
President  John  Adams  —  those  of  Bushrod  Washington  and 
Alfred  Moore  —  one  is  deserving  of  particular  note. 

Adams  was  an  extremely  rich  man ;  his  private  income  was 
reputed  to  be  $25,000  a  year,  which,  at  that  time,  was  re- 
garded as  something  enormous.  In  his  reverence  for  wealth, 
and  his  class  distrust  of  the  "  lower  orders,"  Adams  was  out- 
spoken to  a  point  approaching  what  his  enemies  viewed  as  the 
very  extreme  of  bigotry. 

But  this  charge  was  not  well  founded.  Adams  simply 
voiced  with  honest  belief  the  views  held  by  his  whole  class, 
and  demanded  by  their  interests;  where  Hamilton  in  Adams' 
position  would  have  cautiously  and  unctuously  cajoled  the 
public,  Adams  threw  calculating  tact  aside.  Appointing  cor- 
rupt men  to  office,  conniving  at  the  most  colossal  frauds  and 
thefts  when  committed  by  members  of  his  class,  Adams  was 
an  ideal  head  for  a  government  run  by  capitalists  for  capital- 
ists. In  the  dull  chronicles  of  the  usual  historical  weaving, 
Adams  has  had  to  bear  the  odium  of  the  disgraceful  Alien 
and  Sedition  law,  the  real  purpose  of  which  was  to  stifle  lib- 
erty of  speech  and  of  press.  But  the  actual  authors  of  this 
law  were  the  landholders  and  other  associated  politico-capi- 
talists obtaining  huge  areas  of  public  land  by  fraud,  and 
scheming  either  to  have  confiscated  estates  vested  in  them- 
selves or  in  their  immediate  connections. 

These  men  naturally  objected  to  the  caustic  diatribes  against 
their  meditated  alliance  with  the  British  governing  class  with 
the  object  of  putting  down  the  French  Revolution.  They  were 


FROM    JAY'S   RESIGNATION    TO    MARSHALL  S    ACCESSION          223 

savagely  upset  by  the  biting  exposure  of  their  great  frauds, 
either  accomplished  or  projected.  In  these  frauds  nearly 
every  member  of  the  Cabinet  and  'Senate  had  a  hand  as  also 
many  members  of  the  House  of  Representatives.  The  claim 
for  more  than  11,000,000  acres  of  the  35,000,000  acres  ob- 
tained by  that  grant  bribed  through  the  Georgia  Legislature 
m  J795>  was  held  by  Adams'  Massachusetts  friends;  and,  as 
we  shall  see,  Adams'  son,  John  Quincy  Adams,  was  one  of 
the  attorneys  who  later  successfully  argued  that  claim  to  a 
validation  through  the  Supreme  Court  of  the  United  States. 
This  validation  (to  repeat)  was  based  upon  the  plea  that  the 
Georgia  rescinding  act  was  in  violation  of  the  Constitutional 
clause  forbidding  any  State  to  pass  laws  impairing  the  obliga- 
tion of  a  contract. 

As  we  have  seen  in  Chapter  IV,  Wilson  supplied  by  far 
the  greater  part  of  the  funds  for  the  securing  of  the  bribed 
grant  of  35,000,000  acres  of  land.  At  Justice  Wilson's  death, 
President  Adams  appointed  Bushrod  Washington,  an  Asso- 
ciate Justice  of  the  Supreme  Court.  Bushrod  Washington, 
as  we  have  told,  had  been  placed  by  his  'uncle,  George 
Washington,  in  Wilson's  office  to  study  law,  and  had  been 
associated  in  that  capacity  with  Wilson  during  the  very 
period  when  Wilson  was  engineering  his  Bank  of  North  Amer- 
ica transaction.  He  had  inherited  George  Washington's 
Mount  Vernon  estate.  All  of  the  other  Justices  of  the  Su- 
preme Court  of  the  United  States  were  well  advanced  in 
years,  but  Bushrod  Washington  was  only  thirty-six  years  old 
at  the  time  of  his  being  commissioned  Associate  Justice.40 
The  Supreme  Court's  obituary  on  his  life,  published  in  1830 
as  a  preface  to  the  third  volume  of  Peters'  Reports,  narrates 

40  By  reason  of  excessive  study,  Bushrod  Washington  became  blind 
in  one  eye.  In  stature  he  was  insignificant,  and  he  was  negligent  in 
dress.  He  was  immoderately  addicted  to  snuff  taking.  Withal,  he  was 
the  most  punctilious  stickler  for  forms  and  etiquette.  He  was  said  to 
have  remained,  on  one  occasion,  sixteeft  hours  at  a  stretch  on  the 
Supreme  Court  Bench. 


224  HISTORY    OF   THE    SUPREME    COURT 

the  fact  that  Bushrod  Washington  had  been  placed  by  General 
Washington  in  the  office  of  James  Wilson  to  study  law,  and 
it  further  relates  that  Bushrod  Washington  was  a  great  friend 
of  John  Marshall  and  had  "commenced  his  intimacy  and 
friendship  with  Mr.  Chief  Justice  Marshall"  when  he  (Bush- 
rod  Washington)  was  a  student  at  William  and  Mary  College. 
What  exact  and  intimate  connection  these  facts  had  in  view 
of  subsequent  memorable  decisions  of  the  Supreme  Court  of 
the  United  States,  we  do  not  profess  to  judge;  but  these  are 
the  facts,  and  their  significance  is  self-evident. 

The  Federalists  Go  Out  of  Power. 

With  the  election  of  Jefferson,  in  1800,  the  Federalists 
seemed  swept  out  of  power.  Many  causes  conspired  to  bring 
about  this  great  political  change.  The  small  merchants  and 
petty  shopkeepers,  aiming  at  an  unrestricted  field  for  their 
own  economic  advancement,  revolted  against  government  by 
the  large  landholding  families.  Instead  of  the  old  hereditary 
aristocracy, .  based  upon  large  possessions  of  land,  the  time 
was  ripening  for  a  newer  aristocracy  of  money  derived  from 
industrial  establishments  and  transportation  as  well  as  from 
land.  On  the  other  hand,  the  time  was  not  propitious  for  the 
carrying  out  of  the  Federalist  doctrine  of  concentration  of 
powers  in  the  National  Government ;  the  country  was  vast, 
communication  was  difficult  and  slow,  and  the  two  great  con- 
flicting economic  systems  of  North  and  South  were  silently 
but  more  -intensely  clashing. 

Such  portions  of  the  working  class  as  had  the  right  to  vote 
enthusiastically  supported  the  Republicans  or  Anti-Federal- 
ists, believing  that  the  defeat  of  the  Federalists  meant  a  death 
blow  to  aristocracy.  They  did  not  see  that  a  vastly  more 
powerful  industrial  and  transportation  aristocracy  would  take 
the  place  of  the  old  feudal  aristocracy.  Lastly  there  were 
dissensions  within  the  ranks  of  the  Federalists  themselves. 


FROM    JAY'S    RESIGNATION    TO    MARSHALL'S    ACCESSION          225 

The  great  landholders,  bent  upon  annihilating  both  the  in- 
fluence and  results  of  the  French  Revolution,  were  determined 
upon  a  bitter  war  with  France,  and  an  alliance  with  England. 
But  President  John  Adams,  whose  interests  and  traditions 
lay  more  with  the  shippers  than  with  the  landholders,  wanted 
no  war ;  this  attitude  caused  a  wide  breach  between  the  Adams 
and  the  Hamilton  factions. 

Pack  the  Courts  Before  Going. 

The  Republicans  41  believed  they  now  had  a  clear  field  of 
power.  The  Federalists,  however,  proceeded  to  execute  into 
law  a  piece  of  strategy  by  which  they  were  able  to  outgeneral 
their  opponents,  and  retain  practical  power.  The  Republicans 
had  the  administrative  offices,  and  a  majority  of  the  Legisla- 
tors, but  the  crucial  question  was  as  to  which  side  would  con- 
trol the  judiciary. 

This  fact  both  parties  thoroughly  appreciated.  They  knew 
that  the  courts  before,  and  during,  the  Revolution  had  gone 
to  lawless  lengths  in  doing  as  they  willed.  They  knew  that 
the  courts  had  already,  unquestioned,  set  aside  acts  of  legis- 
latures as  null  and  void,  and  that  they  would  and  could  do 
so  again  with  acts  of  both  legislatures  and  Congress.  They 
knew  that  the  courts  were  the  prime  instruments  for  sanction- 
ing the  acts  of  the  ruling  class,  and  that  with  judicial  prece- 
dents already  built  up,  and  more  that  could  be  added,  theories 
of  law  could  be  devised  to  suit  any  exigency.  Theoretically, 
the  three  departments  of  governments  each  held  coordinate 
jurisdiction,  but  this  was  merely  a  pleasant  fiction.  The  courts 
were  the  real  masters  of  destinies. 

In  the  last  days  of  their  power,  the  Federalists  passed  a 

41  Again  it  should  be  pointed  out  that  the  Republican  Party  of  that 
time  is  not  the  Republican  Party  of  the  present.  The  Republican  Party 
of  Jefferson's  day  developed  into  the  Democratic  Party.  Thus,  Tam- 
many Hall  still  flaunts  its  campaign  inscription :  "  Democratic-Re- 
publican Candidates."  The  Republican  Party  of  these  times  is  the 
descendant  of  the  Federalist  Party. 


226  HISTORY   OF   THE   SUPREME   COURT 

new  judiciary  act,  creating  a  series  of  new  courts,  and  nearly 
three-score  new  judges.  The  most  important  post  in  the 
whole  government,  however,  was  that  of  Chief  Justice  of 
the  Supreme  Court  of  the  United  States.  The  President 
lasted  for  four,  perhaps  eight,  years  in  office;  the  Chief  Jus- 
tice held  office  for  life.  The  President  could  recommend 
laws;  the  Chief  Justice  could  arrogate  the  sovereign  power 
(two  members  of  the  Supreme  Court  agreeing  with  him)  of 
abolishing  laws  with  a  stroke  of  the  pen,  or  virtually  making 
laws  far  more  binding  than  legislative  law. 

But  the  straining  of  both  political  parties  for  the  control 
of  the  judiciary  was,  judging  by  fundamentals,  merely  a 
shallow  conflict.  This  was  later  lucidly  proved  when  Jus- 
tices of  both  political  stripes  stood  together  in  validating 
immense  land  frauds  and  the  fraudulent  recovery  of  confis- 
cated estates,  and  in  the  twisting  and  kneading  of  the  Con- 
stitution to  accord  with  particular  or  general  interests  of 
each  succeeding  dominant  division  of  the  capitalist  class,  in 
the  declaration  of  perpetual  vested  private  and  corporate 
rights,  and  in  the  continuation  of  chattel  slavery.  Quite  true, 
differences  were  revealed  among  various  Justices  over  the 
question  of  State's  rights  versus  consolidation  of  power  in 
the  National  Government.  But  those  differences  exactly  re- 
flected the  contentions  prevailing  at  the  particular  time  be- 
tween capitalists  of  different  sections. 

All  of  the  Justices,  to  whichever  political  parties  they  be- 
longed, to  whatever  source  they  owed  their  appointment,  be- 
lieved in  the  domination  of  government  by  property  for  prop- 
erty, although  while  most  of  them  believed  that  this  rule 
should  be  of  the  large  propertied  interests,  a  few  there  came 
who  held  that  the  middle-class  property  element  should  hold 
the  power.  But  all  were  agreed  upon  the  main  point  of 
straining  every  interpretation  and  construction  for  the  benefit 
of  property,  even  though  there  came  times  when  a  minority 
Justice,  or  perhaps  others  with  him,  refused  to  concur  in  some 


FROM    JAY'S   RESIGNATION   TO    MARSHALL'S   ACCESSION         227 

notorious  decision  handed  forth  by  the  majority.  All,  by 
their  consistent  actions,  evinced  irrefutable  bias  in  favor  of 
established  conditions,  so  far  as  they  applied  to  the  general 
repression  of  the  workers,  and  all  were  class  prejudiced  against 
any  attempt  of  the  working  class  to  improve  its  conditions, 
and  shake  off  the  yoke  of  the  oppression  of  numberless  cen- 
turies. 

A  little  while  before  leaving  office,  President  Adams,  on 
January  31,  1801,  appointed  John  Marshall  to  be  Chief  Jus- 
tice of  the  Supreme  Court  of  the  United  States.  Jefferson, 
who  came  from  the  same  State  as  Marshall,  and  who  was 
thoroughly  conversant  with  his  career  and  mentality,  de- 
plored the  appointment  as  a  public  calamity.  Toward  Adams 
and  others,  Jefferson  entertained  a  bitter  enough  hatred,  but 
when  Jefferson  was  extremely  old  and  after  he  had  forgiven 
all  of  his  other  foes,  Marshall  was  the  one  man  whom  he 
could  not  bring  himself  to  forgive. 

All  of  Jefferson's  political  ideas,  ideals  and  plans  were  up- 
set and  uprooted  by  Marshall's  decisions,  which  forced  into 
practice  the  very  opposite  of  Jefferson's  doctrines.  We  who 
have  the  advantage  of  retrospection  may  look  back  and,  un- 
derstanding the  course  of  industrial  progress,  may  see  that  in 
that  particular  respect,  Jefferson  was  in  error.  For  the  next 
thirty-four  years,  Marshall  was,  in  point  of  actual  sovereignty, 
the  ruler  of  the  United  States,  and  by  force  of  decisions 
handed  down  by  him,  has,  it  may  be  safely  said,  ruled  the 
courts  (which  rule  the  United  States)  ever  since.  Marshall's 
appointment  signified  the  unrestricted  development  of  pri- 
vate corporate  institutions  and  power,  which  was  an  inevitable 
stage  in  the  progress  of  society. 


CHAPTER  VI 
THE  AUTHENTIC  JOHN  MARSHALL 

Of  all  of  the  Chief  Justices  of  the  Supreme  Court  of  the 
United  States,  John  Marshall,  in  reputation,  biographical  lore, 
and  tradition  has  stood  out  fixedly  as  the  most  illustrious. 
Certain  fervent  writers  have  even  classed  him  as  of  the  three 
greatest  men  that  America  has  produced,  ranking  with  Wash- 
ington and  Lincoln.  A  multitude  of  eulogists  have  acclaimed 
him  as  one  of  the  very  foremost  jurists  of  all  ages,  the 
quintessence  and  apogee  of  exalted  judicial  wisdom  and  virtue. 
•  Long  since,  it  became  the  settled  fashion  in  particular  quar- 
ters to  reverence  Marshall's  very  memory.  But  it  has  been  re- 
marked that  this  continuous  laudation  has  singularly  failed 
to  touch  and  move  the  popular  mind.  Of  other  heroes,  war- 
rior and  political,  the  people  at  large  know,  but  they  seem  to 
lack  all  due  appreciation  of  judicial  heroes,  and  go  their  way 
caring  nothing. 

If  to  the  unerudite  run  of  people  the  name  of  John  Mar- 
shall carries  little,  and  means  less,  it  signifies  much  to  the 
aristocracy,  or  let  us  say,  the  oligarchy  of  wealth.  Justly 
so  to  that  highly  conscious  class,  which  always  well  rewards 
and  honors  its  apostles  and  servers,  the  deeds  and  services 
of  John  Marshall  stand  out  with  a  halo  of  dazzling  great- 
ness. To  them,  Marshall  is  the  greatest  of  the  great  among 
judges. 

In  appearance  he  did  violence  to  the  prescribed  fastidious 
apparel  of  awe  with  which  a  judge  was  expected  to  invest  him- 
self. He  was  careless,  even  sloven  in  his  dress,  looking  more 
like  a  countryman  than  a  jurist,  often  taking  his  seat  on  the 
Supreme  Court  bench  with  burrs  sticking  to  his  clothes - 

228 


THE   AUTHENTIC    JOHN    MARSHALL  22Q 

yet  these  were  but  trivial  peccadillos  of  no  disparaging  con- 
sequence.1 True,  in  his  own  day,  this  absence  of  gowned 
dignity  and  stiff  decorousness  was  animadverted  upon  by  the 
devotees  of  aristocratic  elegancy,  who  would  have  preferred 
to  disseminate  the  idea  of  an  awesomely-raimented  Chief 
Justice.  That,  too,  he  frolicsomely  pitched  quoits,  read  nov- 
els ceaselessly  and  even  went  to  market  with  a  basket  on  his 
arm  —  this  did  not  seem  to  comport  with  the  stern,  lofty 
dignity  of  his  unapproachable  office.  But  these  minor  things 
have  all  receded  into  the  obscurity  of  time,  although  (what 
his  critics  overlooked)  they  well  served  their  purpose  of  im- 
parting an  air  of  democratic  simplicity  to  Marshall  while, 
in  works,  he  was  laying  the  bulwarked  foundations  of  an  era 
of  unrestricted  capitalist  development.  And  it  is  because  of 
those  works  that  the  men  of  capital  to-day  so  readily  pro- 
nounce his  incomparable  excellence  of  greatness. 

His  Early  Life. 

Born  in  Fauquier  County,  Virginia,  in  the  year  1755,  John 
Marshall  was  the  oldest  of  a  family  of  fifteen  children.  His 
father,  Thomas  Marshall,  was  a  planter  of  some  slight  for- 
tune, and  for  a  long  time  was  surveyor  and  superintendent 
for  that  considerable  part  of  Lord  Fairfax's  estate  in  the 
Northern  Neck  of  Virginia.  At  one  time  the  extent  of  this 
estate  comprised  twenty-one  counties,  or  more  than  five  mil- 
lion acres.  In  Chapter  I  we  have  related  the  facts  as  to  the 

1  Of  his  personal  appearance,  William  Wirt  wrote : 

"  He  is  tall,  meager,  emaciated ;  his  muscles  relaxed,  and  his  joints 
so  loosely  connected  as  not  only  to  disqualify  him  apparently  for  any 
vigorous  exertion  of  body,  but  to  destroy  everything  like  harmony  in 
his  air  or  movements.  Indeed,  in  his  whole  appearance  and  demeanor 
—  dress,  attitudes,  gesture,  sitting,  standing  or  walking  —  he  is  as  far 
removed  from  the  idolized  graces  of  Lord  Chesterfield  as  any  other 
gentleman  on  earth."  When  holding  his  circuit  court  in  Virginia,  it 
was  Marshall's  habit  to  travel  in  an  antiquated  and  rather  disreputable 
gig.  To  those  who  did  not  know  him  as  the  famous  Chief  Justice,  his 
shabby  dress  and  idiosyncracies  of  personality  frequently  led  to  queer 
misunderstandings. 


230  HISTORY   OF  THE   SUPREME   COURT 

origin  of  the  great  Fairfax  estate,  and  described  how  on 
one  occasion  Lord  Fairfax  fraudulently  conveyed  a  tract  of 
300,000  acres  to  his  nephew  and  agent,  Thomas  Bryant  Mar- 
tin,2 who  at  once  reconveyed  them  to  Fairfax.  Of  the  laws 
then  prevailing  in  Virginia,  we  have  given  ample  details  in 
Chapter  II.  To  recapitulate,  they  were  laws  made  by  the 
manorial  lords  and  planters  exclusively  for  their  own  pur- 
poses and  benefit,  and  drafted  with  great  severity  for  the 
chattel  enslavement  of  the  negro,  and  for  the  practical  en- 
slavement of  the  white  laborer.  There  was  hardly  a  vestige 
of  a  middle  class  during  that  time,  so  that  John  Marshall's 
father  and  the  whole  Marshall  family  belonged  by  interest 
and  attachment  to  the  landed  aristocracy. 

This  was  the  environment  in  which  John  Marshall  was 
born,  and  which  he  imbibed  during  his  most  sensitive  years. 
One  has  only  to  read  the  various  addresses  and  petitions  to  the 
proprietary  manorial  lords  to  know  the  immense  humility  and 
obsequiousness  with  which  those  eminences  were  treated.  To- 
wards Lord  Fairfax,  his  employer,  Thomas  Marshall  assumed 
and  felt  an  unvarying  deference,  not  by  any  mea.ns  like  the 
abject  servility  expected  from  the  "  lower  orders,"  but  still 
of  a  servile  character  customary  from  servitor  and  employe. 
Of  all  of  Thomas  Marshall's  sons,  John,  being  the  oldest, 
was  most  imbued  with  the  pervading  caste  ideas.  He  took 
off  his  hat  humbly  to  Lord  Fairfax  and  regarded  his  title, 
position  and  power  with  vast  respect.  For  slave  and  laborer, 
his  feeling  was  that  of  the  prevailing  aristocratic  contempt. 
He  looked  upon  them  as  the  natural  drudges  for  the  aris- 
tocracy, to  be  held  in  their  places  and  bonds  by  the  strictest 
laws. 

Unlike  many  other  youths  of  their  class,  John  Marshall 
and  his  brothers  were  not  sent  to  private  schools  in  their  in- 
cipiency.  Their  father  engaged  a  tutor  to  take  their  edu- 

2  In  Washington's  Va.  Reports,  Vol.  1 :  227,  the  name  is  given  as 
Bryant  Martin ;  in  all  other  court  reports  it  is  given  in  full  as  Thomas 
Bryant  Martin. 


THE   AUTHENTIC    JOHN    MARSHALL  23! 

cation  in  hand  at  home.  The  consequence  was  that  in  their 
most  impressionable  years  they  iemained  cloistered  in  a  nar- 
row, caste  atmosphere  which  sank  deep.  But,  on  the  other 
hand,  this  personal,  concentrated  paternal  supervision  had 
the  effect  of  developing  certain  mental  qualities  and  marked 
individual  characteristics  so  often  suffering  when  children  are 
educated  in  mass  in  the  undiscriminating  pedantry  of  class- 
rooms. It  was  not  until  John  was  past  fourteen  years  of  age, 
that  he  was  put  in  Rev.  Mr.  Campbell's  school  in  Westmore- 
land County.  When  eighteen  years  old,  he  began  his  legal 
studies,  and  at  the  outbreak  of  the  Revolution  he  enlisted  in 
the  Continental  army.  In  1780  he  was  admitted  to  practice 
at  the  bar. 

His  career  from  thence  was  partly  that  of  engaging  in 
politics,  for  which  he  had  a  precocious  natural  capacity,  and 
in  part  that  of  a  practising  lawyer.  When  twenty-seven  years 
old  he  was  elected  to  the  Virginia  House  of  Delegates,  and 
at  the  same  time  was  appointed  a  member  of  the  Virginia 
Council  of  State.  Marrying  a  daughter  of  Ambler,  the  Vir- 
ginia State  Treasurer,  in  1783,  he  removed  to  Richmond,  but 
still  was  reelected  to  the  Legislature  from  Fauquier  County, 
and  then  Henrico  County.  He  continued  in  the  Legislature 
until  1789.  Hamilton's  influence  upon  Marshall  was  very 
considerable;  and,  as  a  member  of  the  Virginia  Convention 
called  to  ratify  or  reject  the  Constitution,  Marshall  was  con- 
spicuously zealous  in  pushing  its  adoption. 

Attorney  for  the  Fairfax  Estate. 

As  a  lawyer,  Marshall's  specialty  was  landed  estates;  he 
represented  the  Fairfax  interests,3  and  was  attorney  for  other 

3  For  example:  Lord  Fairfax,  in  1741,  sold  243  acres  to  James  Crap. 
Claiming  that  Crap  did  not  pay  the  office  fees,  Fairfax  declared  the 
land  forfeited.  In  1780,  Fairfax,  through  his  agent,  sold  the  same  land 
to  Martin  Pickett.  Crap's  assignee  and  Pickett  contested  for  title  to 
the  land.  John  Marshall,  as  Pickett's  attorney,  won  the  case.  Chief 
Justice  Edmund  Pendleton  delivered  the  court's  opinion, 


232  HISTORY    OF   THE    SUPREME    COURT 

British  claimants  in  other  cases.  More  than  this;  he  was  ex- 
tremely ambitious  to  possess  the  Fairfax  estate  for  himself, 
but  there  were  many  obstacles  to  be  encountered.  What  they 
were,  how  he  gradually  and  persistently  overcome  them  by 
a  series  of  adroit  tactics,  and  how  his  securing  of  the  Fairfax 
estate  was  the  actual  and  predominating  motive  underlying, 
when  he  was  Chief  Justice,  one  of  the  most  important  de- 
cisions affecting  constitutional  law  ever  handed  down  by  the 
Supreme  Court  of  the  United  States  —  all  of  these  facts  are 
herewith  duly  narrated  in  consecutive  order. 

Lord  Fairfax's  entire  estate  had  been  confiscated  ^during  the 
Revolution  by  the  Virginia  General  Act  of  October,  1777,  which 
sequestered  all  of  the  property  and  estates  of  British  sub- 
jects. But  the  legal  ingenuity  of  which  Jefferson  writes,  was 
silently  at  work. 

In  May,  1779,  an  act  was  passed  by  the  Virginia  Legislature 
for  the  apparent  purpose  of  establishing  a  land  office,  and  as- 
certaining the  terms  and  manner  of  granting  waste  and  un- 
appropriated lands.  In  the  act,  unnoticed  except  by  those  in- 
terested, was  this  clause :  "  And  that  the  proprietors  of  land 
within  this  commonwealth,  may  no  longer  be  subject  to  any 
servile,  feudal  or  precarious  tenure;  and  to  prevent  the  dan- 
ger to  a  free  state  from  perpetual  revenue ;  Be  it  enacted, 
That  the  royal  mines,  quit  rents,  and  all  other  reservations 
and  conditions  in  the  patents  or  grants  from  the  crown  of 
England,  under  the  former  government,  shall  be,  and  are 
hereby  declared  null  and  void;  and  that  all  lands,  thereby  re- 
spectively granted,  shall  be  held  in  absolute  and  unconditional 
property,  and  to  all  intents  and  purposes  whatsoever,  in  the 
same  manner  with  the  lands  hereafter  to  be  granted  by  the 
commonwealth,  by  virtue  of  this  act." 4  What  this  clause 
really  did  was  to  relieve  the  proprietors  of  all  rents  and  other 
conditions,  and  at  the  same  time  admit  of  a  construction  by 
which  title  to  their  lands  was  absolutely  confirmed.  The  se- 

4  See,  "  Virginia  Revised  Statutes  of  1783,"  Chap.  13,  Sec.  6,  p.  98. 


THE   AUTHENTIC    JOHN    MARSHALL  233 

cret  agents  of  the  royalist  proprietors  had  done  a  fine  stroke 
in  getting  that  act  passed. 

Evidently,  Lord  Fairfax  knew  precisely  the  meaning  of  the 
act;  before  his  death  in  December,  1781,  he  left  the  whole 
of  his  estate  to  his  nephew,  Denny  Martin  or  Fairfax.  This 
nephew  had  been  born  in  England  about  the  year  1750,  lived 
there,  and  remained  a  British  subject.  The  younger  brother 
of  Denny  Fairfax  was  Thomas  Bryant  Martin,  who  was  a 
citizen  of  the  State  of  Virginia,  and  was,  as  we  have  seen,  Lord 
Fairfax's  agent  and  instrument. 

The  Doctrine  of  Acquiescence. 

For  many  years  the  title  to  certain  of  Fairfax's  estate  had 
been  contested  by  Kite  and  M'Coy  under  a  grant  to  them  which 
we  have  described  in  Chapter  I.  The  suit  of  Kite  and  others 
against  Fairfax  and  others  came  up  before  the  Virginia  Court 
of  Appeals,  in  May,  1786.  John  Marshall  appeared  as  the 
attorney  for  the  Fairfax  claim.  For  Kite  and  others,  John 
Taylor,  their  attorney,  began  with  the  point  that  Fairfax's 
title  was  deficient  and  fraudulent;  that  the  original  proprie- 
tary grant  to  Fairfax  had  been  made  by  Charles  II  while  a 
fugitive,  and  that  James  II,  in  the  fourth  year  of  his  reign, 
but  after  he  (James)  had  been  driven  off  the  throne  by  a 
Revolution,  had  confirmed  it.5 

In  reply,  John  Marshall  made  his  principal  point  a  doctrine 
which,  when  he  was  only  thirty-three  years  old,  we  thus  see 
him  advancing,  and  which  same  redoubtable  doctrine  of  ac- 
quiescence he  later,  as  Chief  Justice  of  the  United  States,  made 
the  foundation  for  perpetuating  chattel  slavery  and  all  man- 
'tier  of  oppressions.  It  was  a  doctrine  that,  for  like  pur- 
poses, has  been  used  by  the  courts  ever  since,  so  that  as  law  is 
now  construed,  it  remains  a  fundamental  and  elastic  method 
of  confirming  the  property,  power  and  tyranny  of  one  class, 
and  the  helplessness  of  another. 

&  Call's  Reports  (Court  of  Appeals  of  Va.),  Vol.  IV:  66. 


J34  HISTORY   OF   THE   SUPREME   COURT 

"  The  long  and  quiet  possession  of  himself  and  his  pred- 
ecessors "  (argued  Marshall  as  to  Fairfax)  ;  "  the  ac- 
quiescence of  the  country;  the  several  grants  of  the  crown, 
together  with  the  various  acts  of  the  Assembly  recognizing, 
and,  in  the  most  explicit  terms,  admitting  his  right,  seemed  to 
have  fixed  it  on  a  foundation,  not  only  not  to  be  shaken,  but 
not  even  to  be  attempted  to  be  shaken.  .  .  ." e  This 
seemed  an  ingenious  argument,  but  the  statements  were  not 
true.  Fairfax's  claim  had  never  been  acquiesced  in  by  Kite  and 
M'Coy,  nor  by  the  officials  who  gave  them  their  contravening 
grant.  Marshall  knew,  too,  that  the  Assembly  acts  were  the 
products  largely  of  Fairfax  himself  who,  with  a  few  other 
proprietaries,  controlled  that  body. 

It  would  seem  self-evident  that  Governor  Randolph  of  Vir- 
ginia, in  1789,  did  not  concede  the  claim  of  either  Fairfax  or 
Kite,  for  on  April  30  of  that  year  Governor  Randolph  gave  to 
David  Hunter,  and  his  heirs  forever,  a  grant  of  a  part  of  that 
very  land,  in  exchange  for  a  land  office  treasury  warrant  dated 
January  23,  1788. 

The  Contest  for  the  Fairfax  Estate. 

A  hot  contest  now  set  in  for  the  possession  of  the  Fairfax 
estate.  Because  of  its  arable  soil  valuable  for  tobacco  grow- 
ing, its  timber  and  other  resources,  its  accessibility,  lying  as 
it  did,  on  the  Potomac  River  and  other  rivers,  and  its  close 
proximity  to  the  newly-established  site  of  the  National  Capital, 
the  prize  was  a  rich  one.  In  April,  1791,  a  declaration  in 
ejectment  was  served  on  the  tenants  in  possession.  This  ac- 
tion was  brought  in  behalf  of  Hunter's  grant.  The  Winches-  . 
ter  district  court  admitted  Denny  Martin  (otherwise  Denny 
Fairfax)  to  defend  the  suit.  It  was  action  specifically  for 
788  acres  of  land  in  Shenandoah  County.7 

6  Call's  Reports,  Vol.  IV:  60. 

7  See,  Munford's  Reports  (Supreme  Court  of  Appeals  of  Va.),  Vol. 
1 :  218. 


THE   AUTHENTIC    JOHN    MARSHALL  235 

But  the  claim,  as  set  up  by  the  heir  of  Fairfax,  covered 
about  three  hundred  thousand  acres  of  land  in  the  Northern 
Neck  of  Virginia,  and  the  real  contention  revolved  around 
the  point  of  whether  Denny  Fairfax,  as  Lord  Fairfax's  heir, 
had  any  claim  whatever  on  an  estate  supposed  to  have  been 
confiscated.  The  State  of  Virginia  denied  first,  that  Lord 
Fairfax  had  ever  got  this  estate  lawfully,  or  by  legitimate 
methods;  second,  it  asserted  that  the  estate  had  been  con- 
fiscated; third,  it  claimed  that  as  an  alien,  Denny  Fairfax 
could  not  hold  lands.  In  opposition  to  these  arguments,  Mar- 
shall used  much  the  same  arguments  that  he  had  employed 
in  the  case  of  Kite  vs.  Fairfax.  The  court,  in  this  case,  de- 
cided in  favor  of  Fairfax ;  as  to  the  special  circumstances  lead- 
ing to  this  decision,  there  are  many  obscurities  in  the  avail- 
able records,  and  the  explanation  cannot  be  extracted. 

But  the  next  step  in  the  proceedings  is  incontestably  clear. 
Presently  it  turned  out  that  Marshall  himself  and  his  brother 
James  had  bought  out  Denny  Fairfax's  claims  to  the  Fair- 
fax estate  in  Virginia.  This  was  considered  news  of  the  first 
importance  in  that  State.  That  the  purchase  took  place  so 
soon  after  the  drafting  of  Jay's  Treaty  was  looked  upon  as 
signifying  that  if  fresh  assaults  were  made  upon  Fairfax's 
title,  the  claimants  could  fall  back  upon  the  provisions  of  that 
treaty  as  an  additional  ground  for  validation  of  their  title. 
This  coincidence  of  John  Marshall's  buying  the  Fairfax  claim 
with  the  signing  of  Jay's  Treaty  was  a  matter  of  invidious 
comment.  John  Marshall's  agent  was  his  brother  James  Mark- 
ham  Marshall,  also  a  lawyer,  who  personally  negotiated  in 
England  with  Denny  Fairfax  for  the  purchase  of  the  Fair- 
fax claim,  for  his  brother  John  and  himself.  And,  as  show- 
ing the  interconnection  of  landed  interests,  it  may  here  be 
remarked  that,  in  1795,  James  Markham  Marshall  married 
Hester,  daughter  of  Robert  Morris,  who  at  this  time  was  en- 
gaged, as  we  have  seen,  in  such  enormous  land  transactions 
with  Justice  James  Wilson  and  others. 


336  HISTORY   OF   THE   SUPREME   COURT 

Marshall  Defends  Jay's  Treaty. 

While  James  Markham  Marshall  was  transacting  this  busi- 
ness in  England,  John  Marshall  was  industriously  advocat- 
ing Jay's  Treaty  in  Virginia.  Its  adoption  meant  much  to 
him.  He  was  the  attorney  for  British  claimants.  His  get- 
ting possession  of  the  Fairfax  estate,  he  astutely  knew,  hung 
much  upon  the  ratification  of  that  treaty.  Both  Hunter  and 
the  State  of  Virginia  were  pressing  new  litigation  against 
any  validation  of  the  confiscated  Fairfax  estate.  As  an  acute 
lawyer,  Marshall  was  well  aware  of  the  full  import  of  the 
provisions  of  Jay's  Treaty,  and  to  what  extent  they  could 
be  used  in  the  courts  for  the  restoration  of  confiscated  es- 
tates. The  Fairfax  claim  up  to  date  had  been  at  best,  he 
knew,  a  shaky  one,  extremely  unpopular,  and  kept  alive  by 
legal  ingenuity  and  sophistry. 

"  The  great  question  of  the  day,"  says  a  eulogist  of  Mar- 
shall, "  was  the  adoption  of  Jay's  Treaty  with  Great  Britain. 
In  Virginia,  a  bitter  opposition  assailed  the  treaty,  and  the 
entire  State  rang  with  denunciations  of  it.  Even  the  influ- 
ence of  Washington  was  powerless  to  stay  the  tide  of  popu- 
lar passion  excited  against  the  treaty,  and  those  who  upheld 
it.  Meetings  were  held  in  Richmond,  and  the  treaty  was 
fiercely  denounced.  Marshall  now  came  to  the  rescue,  and 
before  a  meeting  of  the  citizens  of  that  place  made  such  an 
unanswerable  argument  in  favor  of  the  treaty,  that  the  men 
who  had  been  foremost  in  assailing  it  now  united  in  the  adop- 
tion of  resolutions  indorsing  the  policy  of  the  Administra- 
tion. In  the  Legislature  his  efforts  were  equally  successful, 
and  the  opponents  of  the  Administration  were  forced  to  aban- 
don their  constitutional  objections  to  the  treaty,  and  to  con- 
tent themselves  with  a  simple  denial  of  the  expediency  of  the 
measure  at  that  time."  8 

Houghton  goes  on  to  say  that  "  President  Washington  at- 

8  Houghton's  "  Lives,"  etc.,  443-444. 


THE  AUTHENTIC   JOHN    MARSHALL  237 

tached  so  much  importance  to  these  services  that  he  offered  to 
his  old  friend  and  comrade  the  position  of  Attorney-General 
of  the  United  States,  but  Marshall  declined  the  offer,  as  he 
wished  to  devote  himself  to  his  practice,  which  had  now  be- 
come very  lucrative.  He  continued  to  sit  in  the  Legislature, 
which  did  not  interfere  with  his  private  business,  and  re- 
mained the  constant  and  vigilant  friend  of  Washington's  Ad- 
ministration. In  1796,  he  was  offered  the  post  of  Minister 
to  France,  as  Mr.  Monroe's  successor,  but  declined  it  for 
the  same  reason  which  made  him  refuse  the  Attorney-General- 
ship." 9 

The  real  reason  why  John  Marshall  wanted  to  remain  in 
Virginia  was  certain  pressing  business  concerning  the  Fair- 
fax estate  that  he  was  consummating  in  the  Virginia  Legis- 
lature. To  that  body  he  was  again  elected  in  1795.  The 
action  on  the  part  of  Marshall  and  other  claimants  for  "  Leeds 
Manor,"  was  being  sedulously  pressed  in  the  courts. 

Had  the  outlook  been  good  or  even  passable,  Marshall  was 
the  very  last  who  would  have  listened  to  compromise.  It 
was  tolerably  clear  that  Denny  Fairfax,  as  an  alien,  could 
neither  hold  nor  convey  escheated  land.  Aside  from  the 
purely  legal  aspects,  popular  sentiment  was  greatly  stirred  at 
the  sight  of  aliens  who  had  become  enemies  of  the  American 
Revolution  obstinately  asserting  their  rights  to  land  which, 
according  to  common  understanding,  had  been  definitely  con- 
fiscated. If  Marshall  could  get  a  Legislative  act  specifically 
expunging  the  escheat  or  forfeiture,  that  would  go  far  to- 
ward establishing  his  project  of  recovery.  That  is  what  he 
now  did. 

We  shall  relate  the  successive  steps  as  they  appear  on  the 
records.  The  action  of  Hunter  vs.  Fairfax's  Devisee  was  in 
some  form  before  the  Supreme  Court  of  the  United  States 
in  1796.  It  would  seem  that  this  was  an  appeal  from  the 
decision  of  the  Virginia  court  in  favor  of  Fairfax,  for  Hun- 

o  Ibid. 


238  HISTORY  OF  THE   SUPREME   COURT 

ter  was  now  the  plaintiff  in  error.  On  July  29,  1796,  the 
Clerk  of  the  Supreme  Court  of  the  United  States  received 
a  letter  from  Hunter  saying  that  Campbell,  his  attorney  to 
argue  the  case,  had  died  in  Richmond  on  July  18,  1796,  and 
praying  for  a  postponement  of  the  cause  until  the  next  term. 
This  request  was  opposed  by  Lee  and  Ingersoll,  attorneys  for 
Fairfax's  Devisee.  But  the  Supreme  Court  granted  the  ap- 
plication,10 and  the  case  did  not  again  come  up  before  it  until 
fourteen  years  later.  The  reasons  why  will  duly  appear. 

Announces  His  Purchase  of  the  Fairfax  Claim. 

Petitions  were  concocted,  and  the  Virginia  Legislature  was 
manipulated  to  pass  a  resolution  to  the  effect  that  if  the  devi- 
sees of  Lord  Fairfax,  or  their  claimants,  would  relinquish 
all  claims  to  lands  supposed  to  lie  within  the  Northern  Neck, 
which  lands  were  waste  and  unappropriated  at  the  time  of 
the  death  of  Lord  Fairfax,  then  the  State  of  Virginia  would 
relinquish  all  claims  to  any  lands  specifically  appropriated 
by  Lord  Fairfax  to  his  own  use  either  by  deed  or  actual  sur- 
vey.11 This  resolution  was  put  forward  as  a  measure  de- 
signed to  compromise  the  controversy.  . 

Having  lobbied  the  resolution  of  compromise  through  the 
Legislature,  John  Marshall  then  formally  accepted  the  prop- 
osition in  this  letter: 

"  Richmond,  November  24th,  1796,  Sir,  being  one  of  the 
purchasers  of  the  lands  of  Mr.  Fairfax,  and  authorized  to 
act  for  them  all,  I  have  considered  the  resolution  of  the  Gen- 
eral Assembly  on  the  petitions  of  sundry  inhabitants  of  the 
counties  of  Hampshire,  Hardy  and  Shenandoah  and  have 
determined  to  accede  to  the  proposition  it  contains.  So  soon 
as  the  conveyance  shall  be  transmitted  to  me  from  Mr.  Fair- 

10  Dallas'  Reports,  Vol.  Ill:  305.    In  a  footnote,  Justice  Chase  said 
that  the  matter  was  "of  great  moment;  and  ought  to  be  deliberately 
and  finally  settled." 

11  "Revised  Code  of  the  Laws  of  Virginia"  (Edition  of  1819),  Vol. 
I:  352. 


THE   AUTHENTIC    JOHN    MARSHALL  239 

fax,  deeds  extinguishing  his  title  to  the  waste  and  unappropri- 
ated lands  in  the  Northern  Neck  shall  be  executed,  provJded 
an  act  passes  during  this  session,  confirming  on  the  execution 
of  such  deeds,  the  title  of  those  claiming  under  Mr.  Fairfax, 
to  lands  specifically  appropriated  and  reserved  by  the  late 
Thomas  Fairfax,  or  his  ancestors,  for  his  or  their  own  use.  I 
remain,  Sir,  with  much  respect  and  esteem,  your  obedient  serv- 
ant, John  Marshall.  The  Honorable,  the  Speaker  of  the 
House  of  Delegates."  l- 

Accordingly,  on  December  10,  1796,  the  Virginia  Legis- 
lature passed  an  accommodating  act.  In  the  face  of  the  in- 
tense public  opposition  to  resurrecting  the  titles  (and  fraud- 
ulent titles  at  that),  of  aliens  to  confiscated  estates,  the 
Legislature  dared  not  specifically  say  that  aliens  could  hold 
and  convey  lands. 

But  the  act  circumvented  that  delicate  point  by  removing 
the  disabilities  of  the  forfeiture.  It  innocently  began  assert- 
ing the  right  of  the  Commonwealth  of  Virginia  to  the  lands 
of  the  alien,  Denny  Fairfax.  Then  it  recited  the  terms  of 
the  previous  compromise  resolution,  and  gave  the  full  text  of 
Marshall's  letter  of  acceptance.  The  enacting  clauses  follow- 
ing declared  that  if  those  conditions  were  carried  out  by  a 
specific  agreement,  then  Denny  Fairfax,  or  those  claiming 
under  him,  and  their  heirs,  should  hold  the  land  in  question 
"as  if  he,  the  said  Denny,  had  been  a  native  citizen  of  this 
Commonwealth,  and  as  if  no  escheat  or  forfeiture  had  ever 
taken  place."  The  act,  however,  contained  a  final  clause  re- 
serving to  all  persons,  other  than  the  Commonwealth,  any 
right  or  equity  they  might  have  in  the  Northern  Neck  lands.13 

The  law  raised  a  considerable  popular  commotion,  coming, 
as  it  did,  at  a  time  when  great  numbers  of  the  Revolutionary 

12  Ibid.,  353.    This  letter  is  given  precisely  as  it  appears  in  the  records. 
See,  also,  "  The  Statutes  At  Large  of  Virginia,  etc.,  1792  to  1806,"  Vol. 
II :  22-23. 

13  "  Revised  Code  of  the  Laws  of  Va."  (Edition  of  1819),  Vol.  1 :  353, 
and  "The  Statutes  At  Large  of  Va.,  etc.,  1792  to  1806,"  Vol.  II:  23. 


240  HISTORY   OF   THE   SUPREME   COURT 

veterans  had  been  defrauded  of  their  land  warrants  by  cliques 
of  powerful  politicians,  and  when  settlers  everywhere  were 
intensely  aroused  over  the  appropriation  and  monopolization 
by  the  politico-capitalists  of  tens  of  millions  of  acres  of  the 
best  and  most  accessible  land.  In  the  severe  criticisms  made, 
it  was  pointed  out  that  the  patriots  who  had  fought  the  Rev- 
olution could  not  obtain  land,  while  aliens,  enemies  and  trait- 
ors like  Fairfax  could  get  a  special  law  abolishing  all  penalties 
of  forfeiture.  But,  after  all,  the  law  -was  not  directly  for 
Fairfax's  benefit;  it  was  for  John  Marshall's,  although  the 
one  received  the  benefit  of  the  purchase  price,  and  the  other 
the  estate.  Influenced  by  hostile  public  sentiment,  the  State 
officials  balked  at  enforcing  the  act,  whereupon,  on  December 
22  and  23,  1797,  the  Legislature  formally  requested  the  Gov- 
ernor of  Virginia  to  carry  the  law  into  effect. 

A  Competitor  Brings  Legal  Action. 

Instead  of  this  law  compromising  the  controversy,  still 
fiercer  litigation  resulted.  Hunter  was  determined  to  keep 
his  grant,  and  Marshall  to  gain  the  estate  —  an  estate  not  only 
valuable  commercially,  but  sentimentally  endeared  to  Mar- 
shall by  the  memories  of  the  youthful  days  spent  on  it,  when 
his  father  had  been  its  superintendent. 

Actions  and  counter  suits  kept  the  courts  busy.  It  has  not 
been  possible  to  ascertain  all  of  the  intermediate  circum- 
stances between  the  time  the  compromise  act  was  passed, 
and  the  time,  in  1810,  when  the  case  of  Hunter  vs.  Fairfax's 
Devisee  came  up  on  appeal  before  the  Supreme  Court  of 
Appeals  of  Virginia.  Frequently,  the  formal  court  records 
of  those  days  lack  a  statement  of  the  case,  and  simply  make 
fleeting  references  in  decisions  to  prior  proceedings.  Thus, 
we  learn  from  Judge  Roane's  decision,  in  the  Supreme  Court 
of  Appeals,  in  1810,  that  Marshall,  as  one  of  the  purchasers 
of  the  Fairfax  claim,  had  availed  himself  of  the  compromise 
law  by  "  reversing  two  judgments  in  favor  of  the  Common- 


THE   AUTHENTIC    JOHN    MARSHALL  24! 

wealth  of  Virginia,  on  the  loth  of  October,  1798,  a  record  of 
which  is  before  me."  14  But  what  those  judgments  were,  was 
not  explained.  Judge  Roane  also  strongly  denounced  the 
"  said  purchasers,"  for  having  availed  themselves,  on  the  one 
hand,  of  the  benefits  of  the  compromise  act,  while  on  the  other, 
refusing  to  submit  to  such  of  its  provisions  as  conflicted  with 
their  purposes.15 

It  would  plainly  appear  from  Judge  Roane's  decision  that 
in  violation  of  the  explicit  terms  of  the  compromise  law,  Mar- 
shall set  up  claims  to  lands  which  he  had  expressly  renounced 
in  agreeing  to  the  compromise.  And  apparently  this  move 
was  taken  under  the  provisions  of  Jay's  Treaty,  doubtless 
upon  the  grounds  advanced  by  Marshall  later  that  Fairfax's 
estate  had  never  been  specifically  confiscated ;  that  the  whole 
of  it  was  therefore  vested  in  his  heir,  Denny  Fairfax ;  and 
that  inasmuch  as  Jay's  Treaty  provided  for  the  payment  of 
debts  due  to  British  subjects,  Fairfax  was  entitled  to  recover 
the  purchase  price,  and  his  claim  was  indirectly  confirmed. 
This  is  probably  Judge  Roane's  meaning  in  saying  in  his  de- 
cision that  the  cause  was  revived  under  Jay's  Treaty  of  1794 
providing  for  the  payment  of  British  debts. 

The  course,  however,  of  the  4ong  litigation  over  the  Fair- 
fax estate  and  the  peculiar  circumstances  attending  its  final 
determination,  are  so  intimately  interwoven,  in  many  respects, 
with  the  narrative  of  the  Supreme  Court  of  the  United  States, 
that  in  order  to  present  the  successive  steps  taken,  a  consid- 
erable chain  of  other  highly-important  and  closely-connected 
events  must  be  related. 

Marshall's  Dominating  Personality. 

When  Marshall  was  appointed  Chief  Justice  of  the  Su- 
preme Court,  he  had  absolutely  no  reputation  as  a  jurist.  He 
had  never  had  any  judicial  experience;  his  reputation  was 

14  Munford's  Reports,  etc.,  Vol.  1 :  232. 
16  Ibid. 


242  HISTORY   OF   THE    SUPREME   COURT 

wholly  that  of  a  politician  and  land  lawyer.  In  1797  Pres- 
ident Adams  had  appointed  him,  with  Pinckney  and  Gerry,  as 
Envoy  Extraordinary  to  France,  and  for  a  brief  time,  in  1800, 
he  had  been  in  Congress,  and  had  served  as  Adams'  Secre- 
tary of  State. 

But  a  more  forceful,  dominating  man  than  Marshall,  Adams 
could  not  have  appointed  Chief  Justice;  in  audacity  of  judi- 
cial construction,  and  arrogance  and  tenacity  of  purpose, 
Marshall  soon  revealed  that  he  had  the  qualities  necessary 
for  executing  the  puqx>ses  under  way.10  These  purposes 
were  various.  One  aim  was  to  retain  and  extend  in  the 
courts  the  autocratic  and  all-pervading  power  of  judicial  au- 
thority. Intimately  woven  with  that  aim,  was  the  less  gen- 
eral and  more  personal  design  of  having  the  Supreme  Court 
validate  great  fraudulent  transactions  of  one  kind  or  another, 
by  the  bold  and  simple  process  of  declaring  hostile  legislative 
acts  unconstitutional,  or  of  asserting  that  the  Supreme  Court 
had  original  appellate  powers  of  jurisdiction. 

Already  plans  had  been  concerted  by  which  the  question  of 
the  unconstitutionality  of  the  Georgia  act  rescinding  the 
Yazoo  land  grant  law  was  to  be  passed  upon  by  the  Supreme 
Court ;  we  need  hardly  say  Again  that  John  Ouincy  Adams 
was  one  of  the  attorneys  later  appearing  in  the  open  for  the 
Yazoo  claimants.  In  the  litigation  over  the  Fairfax  estate, 
Marshall's  own  interests  were  involved ;  and,  as  we  shall  see, 
the  final  decision  hung  upon  the  point  of  whether  the  Supreme 
Court  had  the  Constitutional  power  of  deciding  a  case  over 
the  heads  of  a  State  Court.  These  cases  were  but  two  of  a 
large  number  affecting  fraudulent  claims  of  immense  value, 
and  doctrines  of  immeasurable  importance  to  the  ruling  class. 

For  the  particular  work  in  hand,  Marshall,  it  must  be  ad- 
mitted, was  the  very  best  choice  that  could  have  been  made. 

10  The  physical  characteristic  of  Marshall  most  forcibly  impressing 
spectators  was  his  extremely  small  head,  which  was  all  the  more  notice- 
able in  contrast  with  his  tall,  gaunt  frame.  His  eyes  were  black  and 
brilliant,  and  his  face  expressed  obduracy  and  tenaciousness. 


THE   AUTHENTIC   JOHN    MARSHALL  243 

• 

In  selecting  his  premises  in  his  decisions,  Marshall  was  trans- 
parently sophistical  and  unscrupulous,  but  once  he  had  chosen 
those  premises  he  pursued  them  to  a  logical  finish  the  temer- 
ity of  which  must  excite  admiration.  Any  doctrine  or  any 
subtle  theory  of  law  necessary  to  the  justification  of  the  aim 
in  mind,  ministered  to  his  purpose,  yet  once  started  on  his 
particular  line  of  reasoning,  he  expounded  it  in  the  particular 
decision  with  an  acuteness,  lucidity  and  a  conciseness  of 
diction  never  as  yet  surpassed.  But  when  his  different  de- 
cisions are  compared,  they  abound  in  evident  subterfuges  and 
the  grossest  contradictions. 

Almost  immediately  after  he  became  Chief  Justice  the  op- 
portunity was  presented  of  establishing  an  enduring  precedent 
that  the  Supreme  Court  held  the  power  of  declaring  laws  of 
Congress  unconstitutional,  and  that  there  were  vested  rights 
which  no  law  could  abolish. 


The  Case  of  Marbury  vs.  Madison. 

Under  the  act  rushed  through  by  the  Federalists  creating 
additional  judicial  offices,  William  Marbury  and  three  others 
were  appointed  justices  of  the  peace  in  the  District  of  Colum- 
bia. Jefferson,  coming  into  office,  instructed  Madison,  as 
Secretary  of  State,  to  refuse  to  issue  their  commissions.  Mar- 
bury  and  his  associates,  moved  by  their  counsel,  in  December, 
1801,  in  the  Supreme  Court  of  the  United  States  for  a  man- 
damus. But  it  was  not  until  two  years  later  that  Marshall 
handed  down  his  decision.  He  did  not  dare,  at  that  time, 
openly  to  defy  the  administration  by  mandamusing  the  Gov- 
ernment. This,  if  set  as  a  precedent,  would  be  a  double- 
edged  weapon.  But  by  the  following  serpentine  line  of  rea- 
soning Marshall  accomplished  the  adroit  twofold  purpose  of 
seating  the  justices,  and  of  asserting  the  right  of  the  Supreme 
Court  to  declare  laws  unconstitutional : 

He  decided  that  Marbury's  appointment  was  not  revokable; 


244  •  HISTORY  OF  THE   SUPREME   COURT 

that  when  made  it  "  vested  in  the  officer,  legal  rights,  which 
are  protected  by  the  laws  of  his  country."  To  withhold  the 
commission  was  an  act  not  warranted  by  law,  but  was  vio- 
lative  of  a  vested  legal  right.  Now  the  case  was  brought 
under  an  act  of  Congress  authorizing  the  Supreme  Court  to 
issue  writs  of  mandamus  to  any  person  holding  office  under 
the  authority  of  the  United  States.  To  mandamus  to  deliver 
a  paper,  Marshall  held,  was  the  same  as  to  institute  an  original 
action  for  that  paper.  The  authority  thus  given  to  the  Su- 
preme Court,  Marshall  decided,  was  not  warranted  by  the 
Constitution ;  it  was  repugnant  to  the  Constitution,  and  there- 
fore void.  It  was  emphatically,  he  said,  the  duty  of  the  ju- 
dicial department  to  say  what  the  law  was.17  Thus,  while 
ostentatiously  setting  out  to  placate  his  opponents,  the  Re- 
publicans, by  declaring  a  Federalist  law  invalid,  he  cleverly 
made  that  the  cover  for  seating  Federal  judges,  and  for  arro- 
gating the  right  of  the  Supreme  Court  to  void  laws  of 
Congress. 

The  Process  of  Restoring  Confiscated  Estates. 

This  done,  the  next  undertaking  was  to  make  judicial  con- 
structions under  which  confiscated  estates  of  Tories  would 
be  restored  by  court  order.  It  was  a  move,  however,  which 
had  to  be  done  very  slowly  and  discreetly ;  public  feeling  was 
still  intensely  irritable.  One  case  after  another  was  taken 
up,  the  decision  in  each  of  which  was  so  devised,  as  inevitably 

17  Cranch's  Reports,  Supreme  Court  of  the  United  States,  Vol.  I:  176. 
In  the  very  act  of  arrogating  to  themselves  the  supreme  and  final  say 
in  government,  the  politicians  on  the  Supreme  Court  bench  had  the 
assurance  to  advance  the  pretension  that  they  were  safeguarding  popular 
liberties.  "  That  the  people,"  read  an  extract  in  Marshall's  decision, 
"  have  an  original  right  to  establish,  for  their  future  government,  such 
principles,  as,  in  their  opinion,  shall  most  conduce  to  their  own  happi- 
ness, is  the  basis  on  which  the  American  fabric  has  been  erected." 
This  was  a  supererogative  bit  of  claptrap.  The  effect  of  Marshall's 
decision  was  to  make  three  men  (in  a  body  of  five)  the  sole  and  irre- 
sponsible dictators  of  what  laws  should  stand,  and  what  should  not. 


THE  AUTHENTIC   JOHN    MARSHALL  245 

to  supply  cumulative  precedents  for  the  validation  of  Mar- 
shall's own  claim  to  the  Fairfax  estate. 

The  first  case  was  that  of  M'llvane  vs.  Daniel  Coxe's  Les- 
see, argued  before  the  Supreme  Court,  in  February,  1804. 
The  action  involved  the  leading  question  as  to  whether  those 
who  had  gone  over  to  the  British  in  the  American  Revolution 
and  who  had  become  British  subjects,  or  were  aliens,  could 
inherit  lands  in  the  United  States.  This  was  a  question  of 
great  importance;  it  had  never  been  decided  either  by  the 
Supreme  Court  of  the  United  States,  or  by  the  New  Jersey 
courts. 

Daniel  Coxe  had  been  born  in  New  Jersey  while  it  was  a 
British  colony,  and  had  joined  the  British  at  an  early  stage  of 
the  Revolutionary  war.  In  1778  or  1779  he  had  been  attainted 
in  Pennsylvania  for  treason,  and  his  estate  confiscated  by 
specific  proceedings.  At  the  conclusion  of  the  war  he  had 
emigrated  to  England.  There  he  had  become  an  acknowl- 
edged British  subject,  and  had  received  a  pension'  from 
George  III  for  his  loyalty.  And  there,  too,  he  had,  as  a, 
British  subject,  carried  on  trade  and  commerce.  In  1802,  a 
relative  of  his  died  in  New  York,  leaving  an  estate  in  New 
Jersey.  Daniel  Coxe,  as  next  of  blood,  claimed  right  of  in- 
heritance. Another  relative  next  of  blood  after  Coxe  ex- 
cepted  to  Coxe  as  an  alien,  and  falling  back  upon  the  fact 
that  she  was  an  American  citizen,  claimed  the  estate  in  her 
own  right. 

In  his  report  of  the  argument  in  this  case  Cranch's  foot- 
note reads :  "  Present,  Gushing,  Paterson,  Washington  and 
Johnson,  Justices.  The  Chief  Justice  did  not  sit  in  this  case, 
having  formed  a  decided  opinion  on  the  principal  question, 
while  his  interests  were  concerned."  18 

A  peculiar  circumstance  of  this  case  was  that  although  it 
was  very  elaborately  argued  before  the  Supreme  Court  in 
i8o4,19  there  was  no  decision  until  four  years  later.  Why 

18  II  Cranch,  280. 

19  The  argument  is  reported  in  full  in  II  Cranch,  280-336, 


246  HISTORY   OF   THE    SUPREME   COURT 

this  long  delay  of  four  years?  The  Supreme  Court,  then, 
was  not  clogged  with  excess  of  cases.  Were  the  Justices  ap- 
prehensive of  public  feeling? 

Impeachment  Action  Against  Associate  Justice  Chase. 

Perhaps,  also,  the  fact  that  the  House  of  Representatives, 
in  1804,  had  irreverently  brought  impeachment  proceedings 
against  Associate  Justice  Samuel  Chase  had  its  sobering 
weight. 

The  accusations  of  "  high  crimes  and  misdemeanors  "  with 
which  Chase  was  charged  were  sundry.  One  charge  was  that 
he  had  acted  in  a  manner  "  highly  arbitrary,  oppressive  and 
unjust "  in  the  case,  in  1800,  of  John  Fries,  accused  of  treason 
under  the  Alien  and  Sedition  laws;  that  he  had  sought  to 
prejudice  the  jury  against  Fries;  and  that  in  consequence  of 
Chase's  "  irregular  conduct,"  Fries  was  unjustly  sentenced 
to  death.  Another  charge  was  that  Chase  had  acted  likewise 
with  "  manifest  injustice,  partiality  and  intemperance  "  in  pro- 
curing the  conviction  of  John  Thompson  Callender,  who  had 
severely  criticized  Jay  and  other  judges  and  officials.20  These, 
and  other  charges,  it  was  widely  recognized,  were  so  well 
founded  that  the  Adams  administration  had  not  dared  to  carry 
out  the  court's  sentence,  but  extended  pardons.  The  num- 
ber of  votes  in  the  Senate  favoring  Chase's  impeachment 
lacked  the  constitutional  two-thirds  majority  required,  and  he 
was  let  off  by  a  strict  partisan  vote.  This  is  the  only  instance 
of  impeachment  proceedings  against  a  Supreme  Court  Judge 
in  the  entire  history  of  that  Court. 

With  deciding  upon  the  right  of  British  subjects  to  hold 
and  inherit  estates,  the  Supreme  Court  of  the  United  States 
still  kept  up  a  policy  of  cautious  evasion.  This  was  again 

20  "Report  of  the  Trial  of  the  Hon.  Samuel  Chase,  One  Of  The 
Associate  Justices  of  the  Supreme  Court  of  the  U.  S.,  Before  The  High 
Court  of  Impeachment  Composed  of  The  United  States  Senate,"  etc. 
Published  at  Baltimore,  1805,  pp. 


THE   AUTHENTIC   JOHN    MARSHALL  247 

shown  by  the  case  of  Lambert's  Lessee  against  Paine,  coming 
up  before  the  Supreme  Court,  in  February,  1805.  This  suit 
involved  the  question  of  whether  a  British  subject,  born  in 
England  in  the  year  1750,  and  who  had  always  resided  in  Eng- 
land, could,  in  the  year  1786,  take  and  hold  lands  in  Virginia 
by  descent  or  by  devise.  This  note  appears  on  the  official  rec- 
ord: 

"  Feb.  1 8. 

This  cause  was  again  argued  at  this  term  by  the  same  coun- 
sel before  Gushing,  Paterson,  Washington  and  Johnson. 
Marshall,  Ch.  J.,  having  formerly  been  counsel  for  one  of  the 
parties,  did  not  sit,  and  Chase,  ].  was  absent"  -1 

The  action  concerned  a  Virginia  estate  of  about  six  thou- 
sand acres  of  land,  devised  to  George  Gilmer,  a  British  sub- 
ject. Each  of  the  four  justices  sitting22  handed  down  sep- 
arate opinions.  The  majority  of  the  court  said  that  by  the 
will,  Gilmer  derived  a  fee  in  the  land.  But  every  one  of  the 
Justices  evaded  the  crucial  question  as  to  whether  an  alien 
could  hold  land.  "  As  the  majority  of  the  court,"  read  Jus- 
tice Washington's  opinion,  "  is  in  favor  of  the  defendant  upon 
the  construction  of  the  will,  I  do  not  think  it  necessary  to  say 
anything  upon  the  doctrine  of  alienage,  as  [he  significantly 
added]  that  question  may  possibly  come  on  in  some  other  case, 
in  which  it  must  be  decided."  23 

The  Holland  Company's  Frauds  Validated. 

But  if  the  Supreme  Court  was  careful  to  dodge  the  main 
issue  as  regarded  aliens  until  the  receding  years  allayed  public 
agitation,  it  judged  the  time  propitious  for  validating  the  title 

21  III  Cranch,  117. 

22  The  Supreme  Court  was  now  composed  of  six  members. 

23  III  Cranch,  183, 


248  HISTORY   OF   THE   SUPREME   COURT 

to  the  vast  areas  of  land  fraudulently  obtained  by  the  Holland 
Company,  andt  by  other  corporations. 

In  previous  chapters  we  have  outlined  the  history  of  the 
origin  of  the  Holland  Company,  in  the  precedent  operations 
of  which  Justice  James  Wilson,  Robert  Morris,  John  Nichol- 
son and  others  were  so  prominent.  The  great  agitation  con- 
tinued among  the  settlers  over  the  disposition  of  millions  of 
acres  of  land  in  New  York  and  Pennsylvania  to  these  poli- 
ticians, who  in  turn,  sold  them  to  a  group  of  Holland  capital- 
ists. The  Pennsylvania  legislative  act  of  1792  had  ordered 
the  public  land  sold  in  small  areas,  for  actual  settlement  to  be 
made  within  two  years.  But  this  law  was  grossly  evaded  and 
violated  by  Wilson,  Morris  and  company.  How  the  law 
was  evaded,  so  that  a  few  politicians  were  able  to  grasp  enor- 
mous areas,  was  related  by  Judge  Huston  of  the  Supreme 
Court  of  Pennsylvania. 

".  ,  .  •.  Young  men,"  he  wrote,  "  in  the  face  of  the  law 
have  gone  from  home  twenty  or  one  hundred  miles,  com- 
menced a  dozen  settlements  in  one  month,  and  next  year 
worked  a  week  on  each,  and  so  on.  This,  and  everything  like 
it,  is  not  as  directed  by  law.  And  again,  holders  of  great 
numbers  of  warrants  have  hired  the  same  man  to  make,  and, 
in  their  language,  to  keep  up,  twenty  settlements  or  so  many 
of  the  tracts  for  which  they  had  warrants.  .  .  . 

"  The  owners  of  the .  warrants,  and  those  who  had  settled 
without  warrants,  came  early  into  collision,  and  on  each  side 
contended  for  a  construction  not  warranted  by  law.  The 
grantees  of  warrants  obtained  patents,  without  even  commenc- 
ing a  settlement,  on  certificates  of  two  justices  of  the  peace 
that  they  had  been  prevented  by  enemies ;  and  the  persons 
claiming  by  settlement,  contended  that  warrants  were  void  un- 
less settlement  commenced  within  two  years  from  date  of 
warrant.  The  war  raged  during  the  whole  of  two  years,  or 
during  a  great  part  of  it.  .  .  ."  -* 

24  See,  Judge  Huston's  historical  review  of  the  controversy  in  Watts* 
Reports  (Supreme  Court  of  Pa.),  Vol.  I:  70-109, 


THE   AUTHENTIC    JOHN    MARSHALL  249 

The  authorities  of  Pennsylvania  were  goaded  by  public 
agitation  into  bringing  action  against  the  Holland  Company. 
The  matter  came  before  the  Pennsylvania  Supreme  Court  in 
March,  1800.  At  the  same  time,  on  its  part,  the  Holland 
Company  applied  for  a  mandamus  to  compel  the  land  officers 
to  issue  warrants  for  surveys.  "  Can  it  be  sufficient  to  say," 
read  the  State's  argument,  in  part,  "  that  the  Holland  Com- 
pany have  improved  a  great  deal  of  the  country,  and  are  there- 
fore entitled  to  hold  what  they  have  not  improved?  The 
spirit  of  monopoly  was  an  evil  against  which  the  legislature 
meant  to  guard  by  dividing  the  territory  offered  for  sale  into 
single  tracts,  and  restricting  the  right  of  purchase  to  a  single 
tract.  It  is  true,  that  the  connivance  of  opulent  speculators 
has  evaded  the  legislative  precaution;  and  instead  of  each 
settler  being  the  owner  of  the  tract  on  which  he  resides,  he  is 
the  mere  instrument  of  an  association  of  foreigners  (who 
never  visited,  and  probably  never  will  visit,  America)  to  ob- 
tain for  their  emolument  the  lands  which  the  State  had  offered 
for  sale,  with  very  different  views  of  policy  and  ben- 
efit. .  .  ,"25 

The  Supreme  Court  of  Pennsylvania  decided  that  the  settle- 
ments must  be  made  according  to  law,  or  no  title  passed.  But 
the  Holland  Company  kept  on  inspiring  riots  and  bloodshed, 
and  fabricated  a  test  case  in  the  Supreme  Court  of  the  United 
States  for  the  validation  of  its  title.  This  case  came  before 
that  court,  in  February,  1805,  under  the  form  of  the  action 
of  Huidekoper's  Lessee  vs.  Douglas.26 

Attorney-General  Kean,  for  the  State  of  Pennsylvania,  con- 
tended that  the  object  of  the  Legislature  was  the  settlement, 
not  the  sale  of  the  lands;  that  the  purpose  was  to  get  settlers 
so  as  to  form  a  barrier  against  the  Indians.  He  argued  at 
length  for  a  forfeiture  of  the  Holland  Company's  title.  Re- 
sponding, the  Holland  Company's  counsel  brought  up  the  an- 

25  Case  of  Commonwealth  (of  Pa.)  vs.  Tengh  Coxe,  Dallas'  Reports. 
(Supreme  Court  of  Pa.),  Vol.  IV:  195. 
»«  See,  III  Cranch,  1-73, 


25O  HISTORY  OF   THE    SUPREME   COURT 

cient  pretext  (which  we  have  noted  in  the  case  of  the  Loyal 
Company,  in  Chapter  I)  that  the  Indian  wars  prevented  the 
settlement  and  improving  of  the  lands  within  the  required  two 
years. 

Chief  Justice  Marshall's  decision  was  characteristic.  En- 
tirely passing  over  the  all-important  and  essential  fact  that 
millions  of  acres  of  the  very  finest  lands  in  western  Pennsyl- 
vania were  unlawfully  acquired  and  monopolized  by  a  small 
syndicate  of  Holland  bankers  and  merchants,  he  decided  that 
the  excuse  offered  was  good.  In  brief,  he  held  that  when 
Indian  wars 2T  prevented  prompt  settlement,  there  was  a 
release  from  the  fulfillment  of  conditions  demanded  by  law, 
and  that  a  warrant  gave  a  vested  right.  Attention  should  be 
given  to  this  decision ;  in  this  he  held  that  a  contract  was  only 
conditionally  and  relatively  a  contract;  we  shall  come  across 
other  important  decisions  in  which,  for  the  same  purposes 
of  justification,  he  or  his  colleagues  decided  that  a  contract 
must  be  construed  strictly  and  absolutely.  And  by  this  de- 
cision he  set  another  precedent,  as  we  shall  see,  by  which, 
under  the  same  pretext,  huge  areas  of  the  richest  lands  in 
California  and  elsewhere  were  later  grasped  by  a  few  cap- 
italists. 

This  decision  riveted  the  hold  of  the  Holland  Company 
upon  large  areas  of  land,  and  upon  large  numbers  of  settlers, 

27  These  wars  were  caused  by  the  long-continuing  and  systematic 
debauching  and  swindling  of  the  Indian  tribes  by  the  whites.  The  per- 
sons complaining  that  Indian  hostilities  prevented  prompt  settlement, 
were  the  very  persons  whose  practices  incited  those  hostilities.  Mar- 
shall knew  this.  Of  the  many  contemporaneous  accounts  of  the  treat- 
ment of  Indians,  we  will  instance  that  message  of  Governor  Daniel  D. 
Tompkins,  of  New  York,  to  the  Legislature  in  1812.  ".  .  .  It  is  not 
to  be  disguised,"  he  wrote,  "  that  worthless  and  unprincipled  white 
persons,  availing  themselves  of  the  ignorance  of  the  Indians,  and  of 
their  horror  at  becoming  the  objects  of  punishment,  by  laws  which  they 
cannot  comprehend,  wantonly  and  boldly  violate  their  individual  pos- 
sessions and  national  domain."  These  whites,  said  Tompkins,  corrupted 
and  debased  the  Indians'  propensities  and  habits,  intruded  upon  their 
lands,  and  defied  the  law.  (New  York  Senate  and  Assembly  Journals, 
1812,  p.  6.)  It  may  be  added  that  large  numbers  of  the  whites  referred 
to  were  agents  for  land  speculators  and  traders. 


THE   AUTHENTIC   JOHN    MARSHALL 

in  both  Pennsylvania  and  New  York.  So  much  oppression 
resulted  from  the  Holland  Company's  exactions,  that  Gov- 
ernor DeWitt  Clinton,  of  New  York,  in  a  message  to  the  Leg- 
islature, on  March  i,  1820,  urged  that  the  State  buy  the  rights 
of  the  Holland  Company  from  the  bankers,  the  Willincks,  of 
Amsterdam,  Holland.  This  suggested  purchase,  he  wrote, 
would  "  relieve  a  considerable  portion  of  our  population  from 
the  evils  from  which  they  are  suffering,"  and  would  also  do 
away  "  with  an  influence  which  has  been  injuriously  exer- 
cised." There  was  great  excitement,  the  message  reported, 
among  the  yeomanry,  and  it  was  dangerous,  Governor  Clinton 
declared,  to  allow  so  extensive  a  domain  under  foreign  author- 
ity. 

"  In  this  State,"  the  message  went  on,  "  there  are,  west  of 
the  Genesee  River,  from  eighty  to  one  hundred  thousand  peo- 
ple, subject  to  the  will  of  the  Hollanders  for  their  peace  and 
happiness.  .  .  .  By  the  existing  laws  of  the  State,  even 
their  improvements  (in  these  times  of  the  absence  of  all 
money),  are  liable  to  be  sold  at  auction  for  a  trifling  debt, 
arising  from  the  ordinary  credits  in  life,  or  a  lawyer's  or  a 
physician's  bill."  Similar  conditions,  it  may  be  interposed, 
prevailed  in  Pennsylvania.  Governor  Clinton's  message  stated 
that  the  Holland  Company  owned  nearly  2,000,000  acres  in 
New  York,  and  also  held  between  four  and  five  millions  of 
dollars  in  good  bonds,  covenants  and  mortgages.28 

Governor  Clinton's  proposal  was  not  acted  upon.  The 
Holland  Company,  says  Roberts,  "  sold  farms  on  long  time 
to  those  that  would  improve  them,  at  prices  that  seemed  low, 
but  when  a  succession  of  bad  crops  came  or  domestic  affliction 
used  up  the  income,  they  proved  to  be  onerous.  ...  In 
1836  the  people  of  Chautauqua  County  were  disturbed  by  ru- 
mors that  the  liens  given  by  them  to  the  Holland  Company 
were  to  be  enforced,  and  the  land  office  with  its  records  was 
destroyed  by  a  mob.  In  Batavia,  Genesee  County,  a  threat- 

28  Journal  of  the  [N.  Y.]  Assembly,  1820:  581-583. 


252  HISTORY  OF  THE   SUPREME   COURT 

ened  attack  on  the  land  office  was  prevented  by  the  organiza- 
tion of  the  citizens." 20  The  "  citizens "  referred  to  were 
armed  hirelings  employed  by  the  Holland  Company.  Shortly 
after  this,  J.  J.  Vanderkemp,  general  agent  of  the  Holland 
Company  in  Philadelphia,  discontinued  the  company's  office 
at  Batavia.80  A  petition  of  the  inhabitants  living  on  the  Hol- 
land Company's  domain  was  submitted  to  the  Legislature  al- 
leging, by  a  recital  of  the  facts,  that  the  Holland  Company's 
title  was  invalid,  and  demanding  ejectment;  the  Attorney- 
General  was  directed  to  make  an  inquiry.31 

The  Holland  Company  decided  that  it  was  a  wise  move  to 
sell  its  property  to  American  capitalists,  and  did  so.  In  Penn- 
sylvania, the  Holland  Company's  ownership  was  likewise  ac- 
companied by  a  train  of  disturbances  and  litigations,  ending 
in  its  further  enrichment  by  the  sales  of  land  to  native  capi- 
talists. The  huge  sums  of  money  invested  by  the  Dutch 
capitalists  in  canals  and  railroads  were  the  sums  that  had 
been  wrung  from  American  settlers  during  the  more  than 
forty  years  of  the  Holland  Company's  sway. 

These  details  are  given  for  the  purpose  of  showing  some 
of  the  results  of  Chief  Justice  Marshall's  decision. 

The  New  Associate  Justices. 

The  three  Associate  Justices  of  the  Supreme  Court  of  the 
United  States  appointed  by  President  Jefferson,  during  his 
two  terms  of  office,  were  all  associated  either  with  the  landed 
or  banking  class.  Of  all  the  men  ever  sitting  in  that  court, 
William  Johnson,  of  South  Carolina,  appointed  in  1804,  was 
one  of  the  very  few  distinguished,  on  the  whole,  for  his  op- 
position to  certain  .notorious  land  decisions.  He  was  more 
allied  with  the  banking  interests;  his  brother  Joseph  was 
president,  from  1818  to  1823,  of  the  Charleston  '(S.  C.) 

29  Roberts'  "  New  York,"  Vol.  II :  623. 

30  N.  Y.  Assembly  Doc.  No.  317,  1839. 

31  N.  Y.  Assembly  Doc.  No.  224,  Vol.  Ill,  Assembly  Docs.,  1837, 


THE   AUTHENTIC    JOHN    MARSHALL  253 

Branch  of  the  Bank  of  the  United  States.  Of  the  truly 
enormous  corruptions  and  consecutive  frauds  and  thefts  of 
this  bank,  details  are  given  later  in  this  work. 

'  In  the  appointment  in  1807,  of  Brockholst  Livingston,  as  an 
Associate  Justice,  the  long-potent  Livingston  family  secured 
another  successive  representative.  A  son  of  William  Living- 
ston, Brockholst  Livingston  succeeded  his  father's  associate, 
William  Paterson,  who  died  in  1806  while  visiting  his  daugh- 
ter, the  wife  of  Stephen  Van  Rensselaer.  William  Todd, 
Chief  Justice  of  Kentucky,  also  appointed  an  Associate  Jus- 
tice of  the  Supreme  Court  by  Jefferson,  was  allied  with  the 
landed  class ;  and  his  second  wife,  to  whom  he  was  mar- 
ried in  1811,  was  the  widow  of  Major  George  Washing- 
ton, a  nephew  of  General  George  Washington.  She  was 
also  the  youngest  sister  of  the  wife  of  James  Madison. 
Todd,  says  the  biographical  account  of  him  in  the  Supreme 
Court  records,  was  a  great  authority  on  land  laws.  The  ac- 
count further  says  that  "  although  a  Republican,  he  stead- 
fastly supported  the  Constitutional  doctrines  which  Mr.  Chief 
Justice  Marshall  promulgated."  ! 

This  was  the-  composition  of  the  Supreme  Court  bench 
when,  in  February,  in  1808,  after  four  years'  postponement, 
the  decision  in  the  case  of  MTlvaine  vs.  Coxe's  Lessee,  was 
handed  down.  Decrepit  Justice  Cushing,  seventy-six  years 
old,  and  so  valetudinarian  as  to  excite  pity,  wrote  the  court's 
opinion.  So  palpably  remarkable  were  the  grounds  of  the 
decision  that  it  was  received  with  derision ;  it  was  one  of  those 
decisions  that,  not  wrapped  in  technicalities,  could  be  under-- 
stood by  the  layman.  Daniel  Coxe,  it  held,  could  not  by  any 
voluntary  act  of  his,  renounce  allegiance  to  the  State  of  Xew 
Jersey.  He  was,  tfie  decision  read,  "  incapable  of  throwing 

32  See,  Peters'  Reports,  Supreme  Court  of  the  United  States,  Vol. 
XIII :  7  and  8.  This  account  describes  Justice  Todd  as  very  kind  to 
those  in  whom  he  was  interested.  It  says  that  after  the  Kentucky 
Legislature  had  repealed  an  act  granting  a  pension  to  Justice  Muntc-r, 
that  Todd  personally  pensioned  Munter  for  life. 


254  HISTORY  OF   THE   SUPREME   COURT 

off  his  allegiance  to  the  State,"  so  long  as  the  laws  of  New 
Jersey  which  had  made  him  a  subject  of  that  State  were  in 
full  force.  New  Jersey,  in  1776,  was  a  sovereign  State,  and 
had  a  right  to  compel  the  inhabitants  of  that  State  to  become 
citizens.  Therefore,  a  person  living  there  until  1777,  and 
then  joining  the  British  as  a  refugee,  had  a  right  to  take 
lands  by  descent  in  the  State  of  New  Jersey.33 

The  premises  of  this  decision  were  so  obviously  ridiculous 
and  fantastic  that  it  would  be  superfluous  to  analyze  them. 
Nevertheless,  the  decision  served  the  meditated  purposes  of 
ranking  as  a  precedent  leading  up  to  the  settlement  of  the 
Fairfax  matter.  Likewise  did  the  decision,  rendered  in  the 
same  month,  in  the  case  of  Dawson's  Lessee  vs.  Godfrey. 
Marshall  absented  himself  when  this  decision  was  made.  This 
case  dealt  with  the  right  of  an  alien  born  in  England  before 
the  year  1775,  and  who  always  lived  there,  never  coming  to  the 
United  States,  to  take  lands  in  Maryland  which  he  had  in- 
herited in  the  year  1793.  He  could  not  take  those  lands,  the 
Supreme  Court  decided,  because  the  inheritance  antedated 
Jay's  Treaty  by  a  year.34  The  importance  of  this  decision 
lay  in  its  contra-implied  dictum  that  any  transaction  between 
a  British  subject  and  an  American  citizen  made  after  Jay's 
Treaty,  was  an  enforceable  contract.  This  doctrine  precisely 
fitted  Marshall's  own  case  in  his  purchase  of  Denny  Fairfax's 
claim  to  "  Leeds  Manor." 

Then  followed  Marshall's  decision,  in  1809,  in  the  case  of 
Taylor  vs<  Brown  validating  the  fraudulent  possession  of 

33  IV  Cranch,  209-215.     At  the  very  time  that  this  decision  was  handed 
down,  the  United  States  Government  was  contesting  the  claim  of  the 
British  Government  that  Great  Britain  had  the  right  to  impress  sailors 
of  British  birth,  no  matter  on  what  ships  they  were  in  service.     The 
British  Government  proceeded  upon  the  dictum  that  "  once  a  British 
subject,  always  a  British  subject,"  and  the  United  States  Government  as 
vigorously  denied  the  force  of  that  dictum.     This  dispute,  involved  as  it 
was  with  other  questions  arising  from  capitalist  struggles  for  commer- 
cial expansion,  was  one  of  the  causes  of  the  War  of  1812-1815.     Mar- 
shall's decision  was  good  law  according  to  British  contentions. 

34  IV  Cranch,  321. 


THE   AUTHENTIC    JOHN    MARSHALL  255 

surplus  land  not  included  in  the  original  patent.  In  another 
and  weighty  respect,  too,  this  decision  took  rank  as  a  prece- 
dent, for  what  Marshall  actually  decided  was  that  when  the 
person  to  whom  a  stated  area  of  land  had  been  granted,  ap- 
propriated more  than  the  patent  contained,  he  had  a  vested 
right  in  that  illegal  seizure.  Certainly,  this  was  a  very  re- 
markable construction  justifying  land  thefts;  here  are  Mar- 
shall's own  words: 

"  It  is  a  fact  of  universal  notoriety  in  Virginia  not  only 
that  the  old  military  surveys,  but  that  the  patents  of  that 
country  generally  contain  a  greater  quantity  of  land  than  the 
patents  call  for.  The  ancient  law  of  Virginia  notices  this 
fact,  and  provides  for  the  case.  It  prescribes  the  manner  in 
which  this  surplus  may  be  acquired  by  other  persons;  and  it 
is  worthy  of  notice  that  the  patentee  must  himself  reject  the 
surplus  before  it  can  be  acquired  by  another,  and  after  hav- 
ing rejected  it,  he  has  the  election  to  allot  it  in  such  part  of 
his  patent  as  he  pleases."  35 

The  facile  way  was  now  prepared,  the  time  was  accounted 
ripe,  and  accordingly  in  the  next  three  years  two  momentous 
decisions  were  rendered  in  cases  both  of  which  sprang  from 
personal  interests.  These  decisions  equally,  in  different 
ways,  asserted  the  all-embracing,  omnipotent  power  of  the 
Supreme  Court  of  the  United  States.  In  the  one  case,  the 
Supreme  Court  successfully  demonstrated  its  power  of  an- 
nulling legislation  considered  to  be  an  impairment  of  the 
obligation  of  contract,  and  it  held  that  it  had  original  powers 
of  appellate  jurisdiction,  in  deciding  the  other  case.  The  first 
of  these  cases  was  that  of  the  Georgia  legislative  act  rescind- 
ing the  corrupt  grant  of  35,000,000  acres.  The  second  case 
dealt  with  the  Fairfax  estate.  Yet  these  circumstances,  throw- 
ing such  light  upon  the  subterranean  origin  of  memorable 
decisions,  are  by  no  means  all ;  attending  the  actions  were 
a  series  of  other  exceedingly  astonishing  and  interconnected 

35  V  Cranch,  249. 


256  HISTORY   OF   THE    SUPREME   COURT 

circumstances,  the  details  of  which  are  related  in  the  next 
chapter. 

How  Marshall  Ruled  the  Supreme  Court. 

But  before  entering  upon  the  further  narrative,  it  will  be 
advisable  to  give  some  adequate  idea  of  the  arbitrary  and 
domineering  manner  in  which  Marshall  ran  the  Supreme 
Court.  Before  Marshall's  appointment,  the  Supreme  Court 
followed  the  English  practice,  under  which  each  judge  who 
sat  in  a  cause,  gave  an  opinion  whenever  he  thought  there 
was  occasion  for  it;  but  in  general,  those  judges  who  pre- 
sided at  the  circuit  declined  to  sit  in  bane,  except  in  a  case 
where  the  judges  were  equally  divided  in  opinion. 

Under  Marshall  (who  had  argued  but  a  single  case  in  the 
Supreme  Court  of  the  United  States  before  he  became  Chief 
Justice),  this  practice,  Shirley  says,  "was  rooted  out,  so  far 
as  his  influence  extended;  the  judges  reheard  the  causes 
which  they  had  decided  at  the  circuit;  the  practice  of  giving 
individual  opinions  was  repressed ;  the  practice  became  gen- 
eral of  making  one  judge  '  the  organ  of  the  court,'  of  virtually 
assigning  causes,  and  of  taking  them  home  for  the  purpose 
of  writing  up  opinions  in  vacation ;  and  of  having  an  opinion 
written  by  a  single  judge  as  the  opinion  of  the  court,  when  the 
judgment  received  the  assent  of  but  three,  and  sometimes  two, 
of  the  judges,  and  the  reasoning  of  a  less  number.  This 
vicious  practice  occasioned  great  dissatisfaction. 

"The  primitive  court  [Supreme  Court  of  the  U.  S.]  con- 
sisted of  five  judges.  It  was  increased  to  six,  and  afterward 
to  seven.  For  years  it  was  necessary  for  two  of  these  judges, 
in  general,  to  ride  the  circuit  together ;  not  infrequently,  after 
the  accession  of  Marshall,  but  four  judges  held  the  general 
term  at  Washington,  and  constituted  the  court  when  many 
important  causes  were  assigned.  Two  of  the  judges  were 
aged  and  infirm,  and  one  of  them,  for  years  before  his  death, 


THE    AUTHENTIC    JOHN    MARSHALL  257 

was  so  superannuated  that  he  practically  left  his  circuit,  a 
most  important  one,  to  take  care  of  itself,  and  was  a  nonentity 
at  Washington.  The  new  chief  [Marshall]  had,  from  his 
acknowledged  ability  and  force,  and  weight  of  character,  and 
from  his  tact  and  diplomatic  skill,  great  influence  with  his 
brethren.  When  an  occasion  required,  he  was  an-  adept  in 
'  patching  up '  compromise  judgments  and  opinions." 

Continuing,  Shirley  significantly  relates  that  Marshall  some- 
times rendered  decisions  as  being  those  of  a  majority  of  the 
court,  "  without  being  as  careful  as  a  discreet  judge  ought,  to 
find  out  whether  his  opinion  was  that  of  a  majority  or  minor- 
ity of  the  court.  In  Rose  vs.  Himely,  IV  Cranch,  41,  he 
delivered  the  leading  opinion,  and  ordered  the  judgment  of 
the  Circuit  Court  to  be  reversed,  etc.,  when  in  fact  but  a 
single  judge  agreed  with  him,  as  afterwards  appeared  in  Hud- 
son vs.  Guestier,  VI  Cranch,  281. 

"  In  one  of  the  cloud  of  opinions  delivered  by  Marshall  at 
the  trial  of  Aaron  Burr,  he  admits  that  he  made  a  mistake  of  a 
similar  character  in  Bollman's  case.  In  this  way,  two  judges 
practically  became  a  majority  of  six,  and  three  a  majority  of 
seven. 

"  The  causes  referred  to  were  by  no  means  the  only  in- 
stances of  a  similar  kind,  nor  could  they  fairly  be  attributed 
to  the  press  of  business.  These  facts  were  open  secrets  in 
narrow  circles.  This  intensified  the  dissatisfaction.  .  .  ."  30 

While  virtually  declaring  what  the  laws  of  the  country 
should  be,  Marshall  was  thus  a  lawless  dictator,  vesting  in  him- 
self more  powers  than  most  potentates  held.  This  manipu- 
lation of  his  of  the  Supreme  Court  will  assist  in  elucidating 
the  facts  now  following. 

£6  "  Dartmouth  College  Causes"  (Edition  of  1879),  pp.  377-378. 


CHAPTER  VII 
MARSHALL  AND  HIS  CHIEF  COADJUTOR,  STORY 

The  great  case  before  the  Supreme  Court  of  the  United 
States  in  1809-1810  was  that  arising  from  the  act  of  the  Geor- 
gia Legislature,  in  1796,  repealing  the  Yazoo  land  grants  of 
35,000,000  acres,  after  conclusive  evidence  had  shown  that  the 
empowering  act  had  been  obtained  by  bribery. 

About  a  month  before  the  act  was  repealed,  when  the  whole 
country  knew  the  sworn  details  of  the  bribery,  and  when  it 
was  well  known  that  the  incoming  Legislature  was  pledged 
to  annul  the  granting  act,  the  Georgia  Mississippi  Company 
hastily  sold  to  William  Wetmore  and  other  New  England  cap- 
italists, mostly  living  in  Boston  and  adjacent  cities,  a  tract  of 
their  grant.  This  tract  lay  in  what  is  now  the  State  of 
Mississippi,  and  was  estimated  to  contain  the  enormous  total 
quantity  of  11,380,000  acres.  For  this  immense  area,  the  New 
England  Mississippi  Company  (for  so  the  buyirlg  company 
called  itself)  agreed  to  pay  the  Georgia  Mississippi  Company 
ten  cents  an  acre  in  gradual  installments.1 

A  Collusive  Suit  Arranged. 

Who  had  suggested  this  sale  in  view  of  the  fact  that  the 
Georgia  Legislature  was  bound  to  revoke  the  grant?  And 
upon  what  assurances  did  the  Boston  capitalists  contract  to 
buy  the  land,  knowing  as  they  did  that  revocation  was  immi- 
nent and  certain? 

1  See,  Case  of  Brown  vs.  Oilman,  Wheaton's  Reports,  Supreme  Court 
of  the  United  States,  Vol.  IV :  255. 

258 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  259 

Did  the  proposal  and  assurances  emanate  from  Justice 
James  Wilson,  the  foremost  financier  in  the  bribery  transac- 
tion? It  was  he,  as  we  have  seen,  who  contributed  the  great- 
est share  of  the  funds.  We  have  seen,  too,  how  after  the 
Legislature  of  Pennsylvania  had  repealed  the  charter  of  the 
Bank  of  North  America,  owned  by  Wilson  and  others,  Wilson 
had  argued  that  the  repeal  was  in  violation  of  the  obligation 
of  a  contract,  and  that  it  was  injuring  innocent  parties  who 
had  bought  the  bank's  stock.  And  also  we  have  seen  how 
Wilson  was  the  identical  delegate  causing  to  be  inserted  in 
the  Constitution  of  the  United  States  that  sly,  obscure  but 
formidable  clause  prohibiting  State  legislation  impairing  the 
obligation  of  a  contract.  Did  Wilson  advise  the  hurried  and 
collusive  sale  to  the  New  England  capitalists  in  order  that 
they  might  be  able  to  plead  in  court  that  they  were  innocent 
purchasers,  and  knew  nothing  of  the  bribery  and  fraud? 
This,  among  other  defenses,  was  precisely  what  they  did 
plead,  and  continued  to  plead  for  fifteen  years,  although  every 
schoolboy  knew  of  the  great  Yazoo  frauds,  so  widespread  and 
rank  a  scandal  did  they  make. 

After  an  examination  of  the  circumstances,  little  doubt 
remains  that  a  trumped-up  case  was  manufactured  in  order  to 
bring  the  matter  before  the  Supreme  Court  of  the  United 
States,  and  thus  have  the  Georgia  rescinding  act  declared 
unconstitutional.  Knowing  that  the  Georgia  Legislature 
would  revoke  the  grant,  the  capitalists  concerned  hastened  to 
fabricate  a  case  in  this  way:  A  portion  of  the  lands  of  the 
Georgia  Mississippi  Company  were  conveyed  by  the  original 
grantees  to  James  Greenleaf ; 2  from  him,  these  lands  came 
through  a  chain  of  conveyances  to  John  Peck,  who,  in  turn, 
conveyed  them  with  covenants,  to  Fletcher.  After  the 
Georgia  Legislature  had  rescinded  the  grant,  Fletcher  sued 

2  It  has  been  shown  how,  in  another  of  the  four  associated  companies 
—  the  Georgia  Company  —  Greenleaf  held  2,500,000  acres,  and  how 
James  Wilson  contributed  £25,000  to  the  original  capital  of  the  Georgia 
Company,  in  which  he  held  750,000  acres. 


260  HISTORY   OF  THE   SUPREME   COURT 

Peck  for  a  covenant  broken.  This  suit,  of  course,  as  premedi- 
tated, would  open  up  the  whole,  question  of  the  constitution- 
ality of  the  Georgia  rescinding  act. 

Such  evidence  as  is  accessible  tends  to  prove  beyond  question 
that  this  was  the  plan  definitely  agreed  upon,  and  with  this 
particular  ulterior  end  in  view. 

Story  Dines  with  the  Justices. 

The  case  of  Fletcher  vs.  Peck  was  twice  argued  before  the 
Supreme  Court  of  the  United  States,  the  first  time  in  1809. 
On  the  first  occasion,  Peck  was  represented  by  John  Quincy 
Adams,  and  Robert  Goodhue  Harper.  At  the  second  argu- 
ment in  1810,  Joseph  Story  and  Harper  represented  Peck. 
The  note  on  the  Supreme  Court  record  reads :  "  The  plain- 
tiff sued  out  his  writ  of  error,  and  the  case  was  twice  argued, 
first  by  Martin,  for  the  plaintiff  in  error,  and  by  J.  Q.  Adams 
and  R.  G.  Harper  for  the  defendant,  at  the  February  term, 
1809,  and  again  at  this  term  by  Martin,  for  the  plaintiff,  and 
by  Harper  and  Story,  for  the  defendant."  3 

But  meanwhile  some  significant  things  were  happening 
which  are  not  related  in  the  Supreme  Court  records.  Story 
was  a  member  of  Congress  at  the  time,  and  was  briskly  em- 
ployed pushing  the  claims  of  the  New  England  capitalists  in 
that  body ;  in  his  private  correspondence  with  his  friend  Sam- 
uel P.  P.  Fay,  he  frankly  admitted  so.4  What  was  vastly  more 
to  the  point,  he  was  very  frequently  and  intimately  hobnob- 
bing with  the  judges  of  the  Supreme  Court  of  the  United 
States.  In  a  letter,  dated  Washington,  February  16,  1808,  to 
Fay,  Story  wrote:  ".  .  .  The  scene  of  my  greatest 
amusement,  as  well  as  instruction,  is  the  Supreme  Court.  I 

3  VI  Cranch,  114-115.     It  is  again  worthy  of  note  that  Judge  William 
Cranch,  the  reporter  of  the  Supreme  Court  at  this  time,  had  been  the 
attorney  for  James  Greenleaf  in  negotiating  that  great  scandalous  pur- 
chase of  9,000  lots  in  the  city  of  Washington. 

4  "Joseph  Story's  Life  and  Letters"  (Written  and  edited  by  his  son, 
William  W.  Story),  Vol.  I:  197. 


MARSHALL   AND    HIS   CHIEF    COADJUTOR,    STORY  20l 

daily  spend  several  hours  .there,  and  generally  when  disen- 
gaged, dine  and  sup  with  the  judges.  .  .  ." 5 

When  Story  wrote  this  letter,  little  did  he  think  of  what 
historical  importance  it  would  have ! 

Inasmuch  as  Story  soon  after  this  became  an  Associate 
Justice,  and  ranks,  after  Marshall,  as  an  ascribed  great  ex- 
pounder of  jurisprudence,  it  is  advisable  and  appropriate  to 
digress,  here  in  order  to  sketch  his  antecedents,  life,  environ- 
ment and  interests. 

His  grandfather,  William  Story,  was  a  British  official  at 
Marblehead,  Massachusetts.  His  father  was  a  physician,  and 
supported  the  American  Revolution.  "  He  married  for  his  first 
wife,"  wrote  Joseph  Story  to  his  son,  William  W.  Story,  on 
January  23,  1831,  "  Miss  Ruth  Ruddock,  daughter  of  John 
Ruddock,  Esq.,  a  man  who  had  accumulated  a  considerable 
property  in  the  ship-building  business  in  Boston.  She  died 
in  the  year  1777,  leaving  seven  children.  In  the  autumn  of 
1778,  my  father  married  Miss  Pedrick,  whom  you  know  as 
your  grandmother  still  living,  and  by  her  had  eleven  children, 
of  whom  I  am  the  eldest.  Your  grandfather's  father  was  an 
opulent  merchant,  and,  indeed,  for  that  day  a  very  opulent 
merchant."0 

Educated  at  Harvard,  Joseph  Story  necessarily  was  sub- 
ject to  the  acknowledged  caste  environment  systematically 
prevailing  thefe.  Opening  a  law  office  in  Salem,  he  admixed 
politics  and  law  practice.  He  was  a  strong  believer  in  prop- 
erty qualifications  for  voters,  as  was  later  shown  when,  as  a 
member  of  the  Massachusetts  Constitutional  Convention  of 
1820,  he  vigorously  advocated  the  retention  of  the  restrictive 
electoral  laws  in  force.7 

5  Ibid.,  62.     Socially  and  in  his  private  circle,  Marshall  particularly 
was   of   an    extremely  convivial    disposition.     Unlike   Justice    Bushrod 
Washington,  who  was  "  lean  and  emaciated,  with  a  face  like  marble,' 
Marshall    was    strong   and    robust.     In    his   youth    he    had   been    much 
habituated  to  athletic  exercises.     He  could  stand  up  under  much  fes- 
tivity. 

6  Ibid.,  2.  *  See  later. 


262  HISTORY    OF    THE    SUPREME   COURT 

Marshall  Validates  the  Yazoo  Frauds. 

The  decision  handed  down  by  Chief  Justice  Marshall,  in 
the  case  of  Fletcher  vs.  Peck,  made  not  merely  a  considerable, 
but  a  very  great,  public  sensation.  The  decision,  in  brief,  held 
that  the  grant  made  by  the  State  of  Georgia  was  in  the  nature 
of  a  contract  which  could  not  be  impaired  or  revoked  by  sub- 
sequent legislation.  This  being  so,  he  decided,  the  rescinding 
act  of  1796  was  "  repugnant "  to  the  Constitution,  and  there- 
fore null  and  void.8 

From  this  decision  Justice  Johnson  caustically  dissented,  in 
a  strong  opinion,  implying  collusion  in  the  bringing  of  the 
action.  "  I  have  been  very  unwilling,"  he  said,  "  to  proceed 
to  the  decision  of  this  cause  at  all.  It  appears  to  me  to  bear 
strong  evidence  upon  the  face  of  it,  of  being  a  mere  feigned 
cause.  It  is  our  duty  to  decide  on  the  rights,  but  not  on  the 
speculations  of  parties.  My  confidence,  however,"  [was  this 
meant  ironically?],  "in  the  respectable  gentlemen  who  have 
been  engaged  for  the  parties,  has  induced  me  to  abandon  my 
scruples,  in  the  belief  that  they  would  never  consent  to  im- 
pose a  mere  feigned  case  upon  this  court." 

To  form  an  adequate  realization  of  the  wide  and  lasting 
stir  caused  by  this  decision,  it  is  necessary  to  picture  the  pub- 
lic disgust  at  the  methods  by  which  the  Yazoo  land  grants 
had  been  obtained,  and  the  deep  public  horror  at  the  Supreme 
Court  venturing  to  annul  a  State  law  as  unconstitutional, 
especially  a  law  explicitly  designed  to  forfeit  a  grant  of  35,- 
000,000  acres  secured  by  both  fraud  and  corruption.  The 
sworn  testimony  of  that  bribery  was  published  in  official 
records,  available  to  everyone;  not  a  well-informed  person 
was  there  who  did  not  know  them;  and  besides,  the  scandal 
had  been  agitated  for  fifteen  years.  Only  a  short  time  be- 
fore the  decision,  the  Secretary  of  the  Treasury,  in  1810,  un- 

8  See,  VI  Cranch,  87. 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  263 

der  a  resolution  of  the  House  of  Representatives,  reported  of 
the  Yazoo  claims: 

"  The  Yazoo  claims,  so-called,  embracing  about  35,000,000 
acres  in  the  Mississippi  Territory  and  derived  from  a  pre- 
tended sale  by  the  Legislature  of  Georgia,  but  declared  null 
and  void,  as  fraudulent,  by  a  subsequent  legislature.  The 
evidence  as  published  by  the  State  of  Georgia  and  by  Congress, 
shows  that  that  transaction,  even  if  considered  as  a  contract, 
is  as  such,  on  acknowledged  principles  of  law  and  equity, 
null  ab  initio,  it  being  in  proof  that  all  the  members  of  the 
Legislature  who  voted  in  favor  of  the  sale,  that  is  to  say,  the 
agents  who  pretended  to  sell  the  property  of  their  constitu- 
ents, were,  with  the  exception  of  a  single  person,  interested  in, 
and  parties  to,  the  purchase.  Much  litigation  must  be  ex- 
pected, and  orders  have  lately  been  given  for  the  removal  of 
certain  intruders,  some  of  whom  claimed  the  land  under  this 
supposed  title." 

But  what  devious  tack  did  Marshall  take  so  as  to  evade  the 
settled  principle  of  law  that  fraud  vitiated  every  contract? 
With  unsurpassed  audacity,  he  proceeded  upon  the  complacent 
assumption  that  the  bribery  of  legislators  was  merely  a  fanci- 
ful story,  and  waved  the  facts  lightly  aside. 

By  capitalists  of  every  description  the  decision  was  greeted 
with  jubilation.  They  saw  its  prodigious  purport.  It  meant 
that  any  special  privilege,  any  act  bestowing  property,  or 
creating  new  property  rights,  whether  obtained  by  the  grossest 
bribery,  was  a  fixed  and  inalienable  vested  right,  which  no 
subsequent  legislative  act  could  rescind. 

For  this,  John  Quincy  Adams  and  the  illustrious  Joseph 
Story  had  pleaded,  and  this  is  what  the  great  and  pure  John 
Marshall  decided.  Thus  they  bound  upon  future  generations 
laws  secured  by  bribes,  and  arrogated  to  the  Supreme  Court 
the  almighty  power  of  setting  aside  conflicting  legislation, 
because,  indeed,  a  law  was  a  contract  and  a  contract  was  a 
sacred  and  perpetual  right,  to  be  venerated  and  enforced  for 


264  HISTORY    OF   THE   SUPREME   COURT 

all  time.    Justice  James  Wilson  had  done  his  work  well  in 
the  Constitutional  Convention. 

The  Claimants  Get  Nearly  Five  Million  Dollars. 

In  Congress  a  storm  of  bitter  strictures  was  caused  by  the 
decision,9  but  how  much  of  these  arose  from  simulated  in- 
dignation in  order  to  pander  to  constituencies,  how  much  from 
genuine  resentment,  and  how  much  from  violence  to  sec- 
tional convictions  that  the  decision  was  an  usurpation  of 
State's  rights,  cannot  be  accurately  gauged.  So  inflamed, 
however,  was  the  public  temper  by  the  decision,  that  Con- 
gress, for  a  considerable  time,  held  back  from  giving  the 
Yazoo  companies  the  indemnity  they  demanded  under  the 
Supreme  Court's  decision.  The  areas  included  in  their  grants" 
had  been  ceded  by  Georgia  to  the  United  States  in  1802,  and 
could  not  be  restored.  Finally,  in  1814,  Congress  passed  an 
act  appropriating  a  fund  of  $5,000,000  for  the  indemnification 
of  the  claimants,  and  establishing  a  Board  of  Commissioners 
to  determine  the  amount  of  the  awards.  Under  this  law  these 
awards  were  made  in  specially-issued  Government  stock : 

To  the  Upper  Mississippi  Company $   350,000 

"      "     Tennessee  Company    600,000 

'     Georgia  Mississippi   Company 1,500,000 

1     Georgia  Company  2,250,000 

persons  claiming  under  citizenship  rights 250,000 


Total $4,950,000  10 

9  See,  for  instance,  accounts  given  in  Senator  Benton's  "  Thirty  Years 
in  the  Senate." 

10 "American  State  Papers:  Public  Lands,"  Vol.  VI:  21-22.  (Doc. 
No.  759.)  But  not  satisfied  with  the  $1,500,000  award  made  to  the 
Georgia  Mississippi  Company,  a  petition  signed  by  Thomas  L.  Win- 
throp,  Thomas  Wetmore,  William  Sullivan,  John  F.  Loring,  Joseph 
Morton  and  other  Boston  capitalists,  of  the  New  England  Mississippi 
Company,  who  had  bought  that  company's  claim,  was  sent  to  Congress, 
in  1837,  complaining  that  an  erroneous  deduction  of  $130,425.12  had 
been  made  from  their  original  award,  and  saying  that  "the  company 
had  been  left  to  state  their  grievances  for  above  twenty  successive 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  265 

Two  years  later  we  find  Thomas  L.  Winthrop,  one  of  the 
chief  beneficiaries  of  this  decision,  buying,  at  auction,  one- 
half  of  the  unsold  lands  of  the  Kennebec  Company,  in  Maine. 
This  company,  in  1753,  had  bought  from  the  old  Plymouth 
Company,  a  large  tract  of  land  in  that  province,  then  a  part 
of  Massachusetts.  The  grant  as  defined  by  law,  lay  fifteen 
miles  on  each  side  of  the  Kennebec  River,  in  the  vicinity  of 
what  are  now  the  city  of  Augusta  and  the  town  of  Winthrop 
and  other  places.  The  boundary  was  described  as  the  "  ut- 
termost limits  of  the  Cobbosseeconte,"  but  the  company's  sur- 
veyors fraudulently  ran  their  lines  to  the  "  farthest  tiny  rivu- 
let "  they  could  find,  and  thus  boldly  took  in  great  areas  of  ad- 
ditional land.  Much  litigation  resulted  over  title  to  parts  of 
the  land ;  settlers  after  clearing  the  forests,  and  laying  out 
farms,  were  then  compelled  to  pay  twice  and  thrice  ovef  to 
rival  claimants;  and  when,  in  1816,  the  courts  decided  in  favor 
of  the  Kennebec  Company,  the  settlers  were  evicted  and  their 
homes  and  improvements  seized  on  the  ground  that  they  had 
never  obtained  title  from  the  Kennebec  Company.  When 
the  settlers  rose  in  armed  revolt,  and  an  insurrection  on  a  small 
scale  broke  out,  militia  were  requisitioned  to  shoot  them  down. 
Winthrop  subsequently  sold  his  land  to  Congressman  Joseph 
L.  Williams. 

It  was,  says  Shirley,  the  knowledge  of  Marshall's  manipula- 
tion of  the  Supreme  Court  that  "  lay  at  the  bottom  of  the 
attempts  in  Congress  (which  gave  Webster  so  much  trouble, 
and  some  of  the  judges  so  much  uneasiness)  to  prohibit  the 
judges  from  setting  aside  a  State  law  as  unconstitutional  un- 
less a  certain  number  of  judges  sat  in  the  cause  and  con- 
curred in  the  judgments.  It  was  one  of  the  causes  of 
Jefferson's  dislike  of  Marshall,  which  made  him  say  with  a 

years."  The  unblushing  cupidity  of  these  capitalists  was  long  a  subject 
of  comment. —  See,  "  American  State  Papers:  Public  Lands,"  Vol.  VIII: 
985-986.  (Doc.  No.  1594.)  In  Brown  vs.  Oilman,  IV  Wheaton,  255, 
it  is  stated  that  the  New  England  Mississippi  Company  received  $1,083,- 
812  tn  all, 


266  HISTORY   OF   THE   SUPREME   COURT 

bitterness  unusual  with  him,  in  his  letter  to  Ritchie,  of  June 
25,  1810:  '  An  opinion  is  huddled  up  in  conclave,  perhaps  by 
a  majority  of  one,  delivered  as  if  unanimous,  by  a  crafty 
chief  judge,  who  sophisticates  the  law  to  his  mind  by  the 
turn  of  his  own  reasoning.'  "  " 

His  success  in  this  case,  it  may  well  be  understood,  gave 
Story  a  great  prestige  in  capitalist  circles  as  an  attorney  of 
distinguished  mark.  But  like  many  other  lawyers  of  the  day, 
Story  was  not  only  a  practising  attorney  but  a  capitalist  as 
well.  The  very  next  year  after  the  Yazoo  decision,  he  be- 
came president  of  a  bank;  the  circumstances  under  which  the 
charter  of  this  bank  and  the  charters  of  other  banks  were 
granted,  and  Story's  methods  in  connection  with  the  passage 
of  the  acts,  aroused  much  criticism  in  Massachusetts. 

Throughout  the  United  States,  a  hostile  feeling  toward 
banks  generally  prevailed.  We  have  seen  how  in  New  York, 
during  this  period,  the  Legislature  was  being  systematically 
corrupted  to  pass  acts  giving  bank  charters.  It  was  likewise 
so  in  other  States.  True,  the  Constitution  declared  that 
no  State  "  shall  coin  money,  emit  bills  of  credit,  or  make 
anything  but  gold  and  silver  a  tender  in  payment  of 
debts."  But  the  Supreme  Court  of  the  United  States  later 
construed  this  clause  to  mean  that  "  bills  of  credit "  were  not 
intended  to  apply  to  bank  notes.  Long  before  this  decision  was 
made,  began  the  enormous  outpouring  of  State  bank  notes 
the  immense  frauds  of  which  are  described  in  so  many  legis- 
lative and  other  documents  of  the  time.  Vast  issues  of 
bank  notes  were  based  upon  "  wild-cat "  securities  having 
little  or  no  value,  and  banks  frequently  had  an  outstanding 
issue  of  millions  of  dollars  in  bank  notes,  when  there  was 
hardly  anything  worthy  of  being  called  assets  to  back  them 
up. 

This  currency,  so  often  fraudulent  and  spurious,  was  loaned 
at  usurious  rates  of  interest,  and  until  Jackson's  administra- 

11 "  Dartmouth  College  Causes,"  311. 


MARSHALL   AND    HIS   CHIEF   COADJUTOR,    STORY  267 

tion  was  received  as  payment  for  purchases  of  public  lands. 
What  Governor  Tompkins,  of  New  York,  wrote  in  a  message 
to  the  Legislature,  in  1812,  applied  to  banks  throughout  the 
country.  Bank  stock,  he  said,  was  "  generally  owned  by  the 
speculating,  the  wealthy  and  the  aspiring  part  of  society." 
Enterprising  farmers,  manufacturers  and  mechanics,  he  went 
on,  experienced  great  difficulty  in  raising  money  at  lawful 
rates  of  interest  upon  the  best  security.  The  necessity  of 
getting  temporary  pecuniary  relief  frequently  drove  them 
"  into  the  embraces  of  unprincipled,  avaricious  usurers,  who 
fertilize  upon  the  wants  and  distresses  of  the  needy  and  un- 
fortunate." He  further  referred  to  banks  as  "  vesting  in  the 
hands  of  the  wealthy  and  aristocratic  class  of  powerful  en- 
gines to  corrupt  and  subdue  republican  notions."  12 

Story  Puts  Through  Bank  Charters. 

In  1810,  Story  was  elected  to  the  Massachusetts  Legisla- 
ture. Why  did  he  choose  to  leave  the  more  prominent  posi- 
tion of  a  seat  in  Congress  for  the  lesser  post  of  a  seat  in 
that  Legislature?  Was  it  because  he  had  satisfactorily  put 
the  great  Yazoo  land  claims  through,  and  had  plans  of  his 
own  necessitating  his  presence  in  the  Massachusetts  Legisla- 
ture? What  these  plans  were  was  quickly  revealed. 

As  soon  as  the  Legislature  met  in  1811,  Story  was  elected 
Speaker  of  the  House.  On  June  25,  1811,  a  bill  was  passed 
chartering  the  Merchants'  Bank,  with  a  capital  of  $300,000. 
Among  the  incorporators  were  Story's  clients,  George  Crown- 
inshield,  Jr.,  and  John  Crowninshield.13  The  Crowninshield 
family  were  the  owners  of  valuable  wharf  property  in  Salem ; 
two  years  previously,  in  1809,  the  Massachusetts  Legislature 
had  passed  an  act  chartering  them  as  the  Salem  India  Wharf 

12  N.  Y.  Assembly  and  Senate  Journals,  1812:  6. 

18 "Laws  of  Massachusetts,  1809-12,"  Vol.  V:  404.  Story  was  George 
Crowninshield's  attorney  in  lawsuits.  See,  "  Massachusetts  Reports," 
Vol.  Ill:  444  (1807,  etc.). 


268  HISTORY   OF    THE    SUPREME    COURT 

Corporation.14  The  Crowninshield  and  the  Adams  iamilies,  it 
may  be  said,  became  intermarried. 

The  very  next  day  after  the  Merchants'  Bank  was  char- 
tered, a  bill  was  passed  by  the  Massachusetts  Legislature  (on 
June  26,  1811)  chartering  the  State  Bank,  with  a  capital  of 
$3,ooo,ooo.15  One  of  the  leading  incorporators  was  William 
Gray,  a  rich  shipowner  and  noted  politician  who  had  also 
been  an  incorporator  of  the  Essex  Bank,  chartered  by  the 
Massachusetts  Legislature  in  1799.  It  may  be  remarked  here 
that  a  grandson  of  William  Gray  became  one  of  the  Associate 
Justices  of  the  Supreme  Court  of  the  United  States. 

Both  the  Merchants'  Bank  and  the  State  Bank  charters 
were  lobbied  through  the  Legislature  by  Story.  Although 
his  name,  for  obvious  reasons,  did  not  appear  among  the  list 
of  incorporators,  yet  his  connection  was  soon  thereafter  openly 
shown  when  he  was  elected  a  director,  and  then  President  of 
the  Merchants'  Bank  of  Salem.  Writing  to  Story's  son  and 
biographer,  William  W.  Story,  on  August  25,  1847,  J-  W. 
Treadwell,  long  cashier  of  the  Merchants'  Bank,  thus  ex- 
plained the  origin  of  these  two  bank  charters: 

".  .  .  Your  father,  while  a  member  of  the  Legislature 
of  Massachusetts,  exerted  his  influence  to  obtain  acts  of  in- 
corporations for  the  State  Bank  in  Boston,  and  the  Mer- 
chants' Bank  in  Salem,  the  capital  stock  of  which  was  almost 
exclusively  owned  by  members  of  the  political  party  then 
dominant.  ...  At  the  organization  of  the  Merchants' 
Bank,  your  father  was  elected  to  the  Board  of  Directors,  and 
I  was  invited  to  go  into  the  bank  as  one  of  its  officers.  As 
Cashier  of  that  institution,  to  which  I  was  subsequently  elected, 
I  was  brought  into  close  intimacy  with  him ;  and  yet  a  closer 
one  upon  his  election  to  the  Presidency  of  the  Bank,  in  a 
couple  of  years  afterwards."  16 

14  "Laws  of  Massachusetts,  1809-12,"  Vol.  V:  19. 

15  Ibid.,  501. 

1°  "  Story's  Life  and  Letters,"  Vol.  1 :  205. 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  269 


Story  Appointed  an  Associate  Justice. 

In  the  same  year  in  which  these  charters  were  enacted, 
Story,  in  November,  1811,  was  appointed  an  Associate  Jus- 
tice of  the  Supreme  Court  of  the  United  States. 

His  appointment,  it  is  needless  to  say,  was  entirely  satis- 
factory to  both  the  land  and  the  banking  interests.  During 
many  of  the  years  that  he  sat  on  the  Supreme  Court  bench, 
he  was  not  only  president  of  the  Merchants'  Bank,  but  that 
bank  greatly  profited  from  the  deposits  of  Government  money. 
In  another  letter  to  William  W.  Story,  Treadwell  further  says 
that,  "  The  Merchants'  Bank  had  always,  since  its  establish- 
ment, been  the  depository  of  the  funds  of  the  United  States 
Treasury,  which  had  often  been  large  [Salem  was  a  busy 
sea-port  town  with  considerable  customs  revenues],  and  con- 
tributed to  swell  its  dividends."  A  competing  bank  in  Salem, 
Treadwell  says,  forwarded  a  memorial,  during  President  Jack- 
son's Administration  to  the  Secretary  of  the  Treasury  Louis 
McLane,  stating  that  inasmuch  as  the  president  and  the  cashier 
of  the  Merchants'  Bank  were  enemies  of  the  administration, 
the  Government  deposits  should  be  removed  to  the  friendly 
bank.  But,  adds  Treadwell,  the  Government  funds  were  left 
undisturbed  in  the  Merchants'  Bank.17  From  being  stanch 
Republican,  Story  had  changed  his  politics,  and  became  a 
deep-rooted  Federalist.  As  for  McLane's  methods,  they  were 
later  revealed  in  the  celebrated  bribery  contract  case  of  the 
Baltimore  and  Ohio  Railroad  Company,  of  which  corporation 
he  became  president.18 

"  Ibid.,  158-159. 

18  Alexander  J.  Marshall,  in  1853,  sued  the  Baltimore  and  Ohio  Rail- 
road Company  for  $50,000,  which  he  proved  was  owed  to  him  for  serv- 
ices under  a  special  contract  for  lobbying  a  bill  through  the  Virginia 
Legislature  granting  to  the  company  the  right  of  way  through  Virginia. 
Marshall  was  employed  by  McLane  as  lobbyist.  See,  Case  of  Marshall 
vs.  Baltimore  and  Ohio  Railroad  Company,  Howard's  Reports,  Su- 
preme Court  of  the  United  States,  Vol.  XVI :  314.  This  case  is  de- 
scribed more  in  detail  further  on  in  this  present  history. 


270  HISTORY   OF  THE   SUPREME   COURT 

Chief  Justice  Marshall  had  decided  the  great  Yazoo  land 
frauds  case  in  favor  of  Story's  clients.  It  now  came  Story's 
turn  to  decide  the  long-pending  case  of  the  Fairfax  estate 
favorable  to  Marshall. 


Marshall's  Fairfax  Claim  Up  Again. 

The  case  of  Hunter  vs.  Fairfax's  Devisee  had  come  up  be- 
fore the  Supreme  Court  of  Appeals  of  Virginia,  in  April, 
i8io.19  Why  there  was  such  a  long  lapse  between  the  de- 
cision of  the  Winchester  court,  in  1794,  and  the  decision  of  this 
court,  is  not  clearly  explained.  Evidently,  one  aspect  of  it  was 
new  points  arising  from  the  gross  violation  of  the  compromise 
law  by  John  Marshall  and  his  brother,  as  the  purchasers  of 
Fairfax's  claim.  In  a  decision  which  was  really  a  sharp  ex- 
posure of  the  Marshalls'  methods  and  pretensions,  the  Su- 
preme Court  of  Appeals  of  Virginia  reversed  the  lower  court. 

"  I  consider,"  said  Judge  Roane,  "  the  compromise  as  hav- 
ing been  deposited  with  the  court  for  the  purpose  of  settling 
all  the  causes  embraced  thereby,  according  to  the  provisions 
thereof ;  and  I  can  never  consent  that  the  appellees  after  hav- 
ing got  the  benefit  thereof,  should  refuse  to  submit  thereto,  or 
pay  the  equivalent;  the  consequences  of  which  would  be  that 
the  Commonwealth  would  have  to  remunerate  the  appellant 
[Hunter]  for  the  land  recovered  from  him.  Such  a  cause 

cannot  be  justified  on  the  principles  of  justice  or  good  foith. 
»  20 

The  unprecedented  action  was  now  taken  of  carrying  this 
reversal  to  the  Supreme  Court  of  the  United  States,  which 
issued  a  writ  of  error. 

The  uncontroverted  points  up  to  this  time  were : 

Lord  Fairfax  (as  was  agreed  by  both  litigants),  had  »-on- 

19 "Judge  Tucker,"  the  note  on  the  record  reads,  "not  sitting  in  'his 
case,  through  motives  of  delicacy,  being  nearly  related  to  a  perscr  in- 
terested."—  Mun ford's  Reports,  etc.,  Vol.  I:  218. 

20  Ibid.,  232. 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  271 

veyed  300,000  acres  to  his  nephew,  T.  B.  Martin,  who  had  re- 
conveyed  them  to  Fairfax  in  fee. 

Virginia  had  passed  acts  of  confiscation  of  the  property  of 
aliens. 

Denny  Fairfax,  Lord  Fairfax's  heir,  was  a  British  subject; 
he  had  always  lived  in  England  up  to  the  time  of  his  death  in 
about  the  year  1803. 

John  Marshall  and  his  brother,  James  Markham  Marshall, 
had  bought  Denny  Fairfax's  claim  to  the  estate  in  the  North- 
ern Neck  of  Virginia.21 

John  Marshall  had  agreed  to  the  act  of  compromise  passed 
by  the  Virginia  Legislature,  but  later,  after  considering  to 
what  full  effect  the  provisions  of  Jay's  Treaty  could  be  used, 
had  (so  the. Supreme  Court  of  Appeals  of  Virginia  held)  vio- 
lated, if  not  repudiated  it,  in  bad  faith. 

Under  the  form  of  Fairfax's  Devisee  vs.  Hunter's  Lessee, 
the  case  came  before  the  Supreme  Court  of  the  United  States, 
at  the  February  term,  in  1813.  At  the  argument  Chief  Jus- 
tice Marshall  and  Justice  Bushrod  Washington  were  absent. 

The  attorneys  for  Fairfax's  Devisee  contended,  among 
other  points,  that  Fairfax's  estate  had  never  been  taken  from 
him  by  any  equivalent  mode  of  confiscation.  The  treaty  of 
peace  of  1783,  it  was  argued,  found  Denny  Fairfax  in  pos- 
session of  his  estate  unaltered  from  the  condition  in  which  he 
originally  inherited  it,  and  so  operated  as  a  release  and  con- 
firmation to  the  British  proprietor.  His  title,  the  argument 
further  ran,  was  explicitly  acknowledged  and  confirmed  by 
Jay's  Treaty  of  1794. 

Harper,  attorney  for  Hunter,  argued  that  Lord  Thomas 
Fairfax's  original  power  had  been  only  one  to  grant  lands 
to  individuals;  that  it  was  not  contemplated  that  he  himself 
should  occupy  the  lands ;  the  power  was  a  mere  transference 
or  delegation  of  power  which  passed  to  Virginia  at  the  time 

21  The  Virginia  records  show  that  James  Markham  Marshall  collected 
the  rents,  and  was  the  general  man  of  business  for  the  estate. 


272  HISTORY   OF   THE   SUPREME   COURT 

of  the  Revolution.  "  This,"  said  Harper,  "  was  the  construc- 
tion put  upon  it  by  Lord  Fairfax  himself —  for  when  he  in- 
tended to  appropriate  any  part  of  the  lands  to  his  own  use, 
he  granted  it  to  a  third  person,  and  then  took  back  the  title 
from  his  own  grantee.  His  deeds  were  not  in  the  common 
form,  but  were  made  to  resemble  those  of  the  crown."  An 
alien,  continued  Hunter,  could  not  sell ;  he  had  nothing  but  a 
naked  possession. 

Story  Decides  in  Favor  of  Marshall. 

When  Justice  Story  handed  down  the  decision  in  this  case, 
on  March  15,  1813,  Marshall  and  Todd  were  absent.  Story 
decided  that  although  Denny  Martin  (or  Fairfax)  was  an 
alien  enemy  at  the  time  of  Lord  Fairfax's  death,  yet  he  never- 
theless had  legitimately  inherited  the  estate  under  Fairfax's 
will.  That  testament,  Story  held,  could  not  be  divested  on 
the  ground  of  alienage,  except  by  a  specific  official  act,  called  in- 
quest of  office,  or  by  some  specific  legislative  act,  or  its  equiva- 
lent. A  general  act  would  not  suffice  for  confiscation.  And, 
since  no  proceedings  of  escheat  had  ever  been  taken  against 
the  estate  before  the  adoption  of  Jay's  Treaty  of  1/94,  there- 
fore the  defeasible  title  vested  in  the  alien,  Denny  Fairfax, 
was  completely  protected  and  confirmed  by  that  treaty.22 

Justice  Johnson  was  the  only  dissenting  member  of  the 
SupremeXTourt.  He  asserted  that  the  disability  of  an  alien 

22  VII  Cranch,  603.  The  area  of  land  involved  in  the  final  determi- 
nation of  this  suit  is  not  stated.  John  Marshall  and  James  Markham 
Marshall  received  all  the  lands  in  "  Leeds  Manor,"  where  their  pos- 
terity continued  to  reside. 

In  an  article  published  in  the  Greenbag,  issue  of  Dec.,  1896,  John 
Marshall's  great  granddaughter,  Sallie  E.  Marshall  Hardy,  writing  from 
family  papers  and  correspondence,  stated  that  in  his  latter  years  it  was 
Marshall's  practice  every  year  to  pay  a  visit  to  his  sons  and  estates  in 
Fauquier  County.  Marshall  was  also  described  as, a  slaveholder,  and 
Leeds  Manor  was  thus  pictured  in  that  article:  "Leeds  Manor  is  at 
the  foot  of  Little  Cobbler  Mountain.  In  all  the  world  there  is  no  more 
beautiful  spot."  Of  course,  the  article  gave  no  hint  as  to  how  Marshall 
obtained  his  estates. 


MARSHALL   AND    HIS    CHIEF   COADJUTOR,    STORY  2/3 

to  hold  real  estate  was  a  general  principle  of  common  law. 
He  declared  with  significant  emphasis  that  Jay's  Treaty  of 
1794  extended  to  rightful  causes  only.  In  the  case  of  Smith 
vs.  the  State  of  Maryland,  he  pointed  out,  the  Supreme  Court 
of  the  United  States  had  once  sustained  a  specific  confiscation 
of  lands,  under  a  law  of  that  State,  although  there  was  neither 
conviction  nor  inquest  of  office.  The  Legislature  of  Vir- 
ginia had  like  power  to  confiscate,  Justice  Johnson  said.  And, 
after  all,  he  added,  the  interest  acquired  under  the  devise  was 
a  mere,  shadowy  scintilla  juris  which  had  been  extinguished 
by  the  grant  to  Hunter.23 

So  Chief  Justice  Marshall  and  his  brother  managed  to  get 
legal  hold  of  the  much-desired  "  Leeds  Manor,"  by  a  decision 
of  his  own  court,  handed  down  by  an  Associate  Justice  whose 
fraudulent  case,  involving  such  immense  interests,  had  been 
decided  favorably  by  Marshall  three  years  previously.  Story's 
decision  revealed  an  amazingly  comprehensive  intimacy  with 
all  of  the  twists  and  turnings  of  ancient  Virginia  laws,  legis- 
lation and  practices  —  a  knowledge  that  no  other  member  of 
the  Supreme  Court  but  Marshall  had.  In  fact,  it  has  never 
been  disputed  that  Story,  in  his  Supreme  Court  career,  was  a 
complete  satellite  of  Marshall,  and  registered  into  decisions 
the  species  of  law  dictated  by  Marshall ;  Story  himself  prac- 
tically acknowledged  this. 

Justice  Livingston's  Case. 

Equally  significant  was  the  fact  that  virtually  every  mem- 
ber of  the  Supreme  Court  was  personally  interested  in  some 
case  coming  up  for  final  decision.  It  would  clearly  seem  that 
each  voted  for  the  other's  cases.  Thus,  in  the  very  month 
that  the  Fairfax  case  was  argued,  the  case  of  Livingston  and 
Gilchrist  vs.  The  Maryland  Insurance  Company  came  before 
the  Supreme  Court.  The  Livingston  in  this  case  was  none 

23  VII  Cranch,  631. 


274  HISTORY   OF   THE   SUPREME    COURT 

other  than  Brockholst  Livingston,  at  that  identical  time  an 
Associate  Justice  of  the  Supreme  Court  of  the  United  States. 
The  case  had  gone  against  Livingston  and  Gilchrist  in  the 
Circuit  Court,  in  Maryland,  and  now  came  up  on  appeal. 
When  the  case  was  passed  upon  by  the  Supreme  Court,  Justice 
Livingston  absented  himself.  Todd  also  kept  away,  probably 
because  of  ill  health,  from  which  he  greatly  suffered. 

The  facts,  as  stated  in  the  Supreme  Court  reports,  revealed 
a  commercial  turpitude  not  at  all  harmonizing  with  the  lofty 
qualities  accredited  to  a  Supreme  Court  Justice.  Briefly,  the 
facts  were : 

Julian  Hernando  Baruso,  a  Spanish  subject,  had  received  a 
royal  license  from  Spain  to  import  goods  from  Boston  to 
Peru  and  Buenos  Ayres,  and  vice  versa.  This  license  was  a 
great  asset ;  the  laws  of  Spain  allowed  trade  under  a  Spanish 
license  only.  On  August  24,  1804,  Baruso  entered  into  a 
contract  with  one  Anthony  Carroll  to  transport  goods  to 
Lima ;  Brockholst  Livingston  was  Carroll's  surety  for  the  per- 
formance of  the  contract.  On  January  25,  1805,  war  was 
declared  between  Great  Britain  and  Spain.  Brockholst  Liv- 
ingston made  a  new  contract  with  Baruso  for  the  transporta- 
tion of  $50,000  worth  of  goods,  "  the  funds  and  vessel  to  be 
furnished  and  advanced  by  the  said  L."  24  The  articles  were 
those  of  partnership  with  Livingston ;  Baruso  and  Livingston 
were  to  divide  the  profits  equally,  and  Livingston  was  to  get 
commissions  from  the  sale  of  the  merchandise.  On  the  re- 
turn voyage  a  cargo  was  to  be  brought  back.  But  war  was 

24  IV  Cranch,  508.  The  profits  of  shipping  merchants  were  extraor- 
dinarily large.  The  Government  extended  credit  for  nine,  twelve  and 
eighteen  months  before  it  demanded  the  payment  of  customs  duties.  As 
soon  as  the  ship  arrived,  the  shipper  often  sold  the  cargo  at  a  profit 
of  fifty  per  cent.  Instead  of  having  to  use  their  profit  and  capital  in 
further  ventures,  the  shippers  had  the  gratuitous  use  of  Government 
money  for  periods  from  six  months  to  a  year  and  a  half.  Thus,  John 
Jacob  Astor,  who  was  primarily  a  snipper,  had  what  was  actually  a 
free-of-interest  loan  from  the  Government  of  more  than  five  million 
dollars.  Hence,  it  is  easy  to  see  what  the  inducements  were  for  going 
into  commerce. 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  2/5 

on  and  the  cargo  was  liable  to  seizure  and  confiscation  by 
Spain  or  by  British  ships.  Under  the  laws  of  Spain,  trade 
could  be  carried  on  only  by  special  permission,  and  under 
a  Spanish  name  and  Spanish  papers.  To  meet  this  contin- 
gency, Livingston  shrewdly  got  Baruso  to  contract  that  he 
(Baruso)  would  be  answerable  for  the  detention  of  the  ship 
or  confiscation  of  the  goods,  and  would  pay  the  duties. 

Livingston  then  bought  the  ship  Herkimer,  and  entered  into 
a  contract  with  Gilchrist,  James  Baxter  and  Edward  Griswold 
for  the  contribution  of  joint  funds  to  buy  the  cargo.     This 
cargo  was  shipped  to  Lima,  and'a  return  cargo  was  received  ats 
Guayaquil. 

/ 
An  Illegal  Voyage  and  Fraudulent  Papers. 

On  the  return  voyage,  just  after  doubling  Cape  Horn,  Bax- 
ter, who  was  supercargo  and  First  Mate,  gave  to  Mate  Giles 
a  bundle  of  papers  to  conceal.  Near  the  port  of  New  York, 
the  Herkimer  was  captured  by  the  British  warship  Leander. 
On  searching  the  vessel,  the  British  officers  found  two  dis- 
tinct sets  of  papers ;  one  set  showing  the  cargo  to  be  the  prop- 
erty of  Baruso,  and  another  set  representing  it  to  be  that  of 
Livingston  and  the  other  three  Americans.  The  Herkimer 
was  take'n  as  a  prize  to  Halifax  and  condemned. 

The  Maryland  Insurance  Company  refused  to  pay  insur- 
ance on  the  ground  that  it  had  insured  against  loss -by  capture 
warranted  American  property  only. 

The  conflicting  points  in  the  resulting  suit  were:  The  in- 
surance company  claimed  that  the  basis  of  the  whole  trade 
with  Peru  was  the  fact  that  Baruso,  as  a  Spanish  subject, 
had  a  royal  license  for  the  trade ;  therefore  the  cargo  was 
under  Spanish,  not  neutral  laws,  and,  as  such,  was  liable  to 
seizure  and  confiscation.  On  the  other  hand,  Livingston  and 
Gilchrist  contended  that  Baruso  was  then  residing  in  New 
York,  was  a  neutral,  and  that  the  cargo  was  that  of  neutrals. 

Attorney-General  Pinckney  set  forth :     "  The  concealment 


276  HISTORY   OF   THE   SUPREME   COURT 

of  the  papers  was  unneutral,  although  the  parties  were  jus- 
tifiable in  using  them  to  protect  their  illegal  trade.  .  .  . 
But  this  was  not  a  concealment  of  innocent  papers.  It  was 
a  concealment  of  papers  tending  to  prove  the  property  to  he 
belligerent.  It  increased  the  suspicions  already  excited  by 
other  circumstances.  Baxter  was  supercargo,  and  his  acts 
bind  the  others,  although  he  was  a  partner.  All  the  partners 
are  affected  by  the  fraud  of  any  one  of  them.  .  .  . 

"  This  concealment,  connected  with  the  other  circumstances, 
justified  the  condemnation.  There  were  documents  showing 
the  property  to  be  in  four  Americans.  Among  the  concealed 
papers  was  a  copy  of  the  royal  Spanish  license  authorizing 
a  Spanish  subject  resident  in  Boston  to  import  goods  into  the 
United  States  from  the  Spanish  colonies.  The  adventure  ap- 
peared to  be  Spanish.  It  could  only  be  carried  on  by  a  Span- 
iard. 

"  There  was  also  concealed  another  paper  of  great  effect 
—  a  power  of  attorney  from  Baruso  to  Baxter,  the  super- 
cargo, in  which  Baruso  says  the  cargo  '  is  laden  for  me  and 
on  my  account  and  risk.'  It  proved  the  property  to  be  in, 
Baruso.  It  calls  him  a  Spanish  merchant.  It  showed  his 
national  character  to  be  belligerent,  although  he  was  resident 
in  another  country."  25 

Attorney-General  Pinckney  went  on  to  say  that  Baruso  "  was 
the  cloak  of  the  transaction,"  that  there  were  two  sets  of 
documents';  that  Baxter  prevaricated  to  the  British,  and  that 
there  was  nothing  left  for  the  British  but  to  condemn  the 
ship  and  cargo.  "  Why  did  he  [Baxter]  show  the  neutral 
papers  only?  The  object  was  to  defeat  an  acknowledged  bel- 
ligerent right,  and  he  endeavored  to  deceive  the  adjudicating 
court."  20 

Confronted  by  this  strong  statement  of  facts,  what  did  the 
Supreme  Court  decide? 

25  IV  Cranch,  523-525. 
.,  525. 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  277 

Marshall  Decides  in  Favor  of  Livingston. 

In  deciding  this  case,  Chief  Justice  Marshall  turned  a 
somersault,  holding,  in  effect,  the  precise  opposite  of  what  he 
had  held,  a  few  years  before,  in  the  case  of  M'llvaine  vs.  Coxe. 
Reversing  the  Circuit  Court's  decision,  Marshall  decided  in 
favor  of  Livingston  and  Gilchrist  on  these  grounds :  That 
a  Spanish  subject  who  came  to  the  United  States  at  a  time 
of  peace  between  Great  Britain  and  Spain  to  carry  on  trade 
between  the  United  States  and  the  Spanish  provinces,  under 
a  royal  Spanish  license,  and  who  continued  to  reside  in  the 
United  States,  and  carried  on  trade,  after  the  breaking  out 
of  war,  was  to  be  considered  an  American  merchant,  even 
although  the  trade  could  be  lawfully  carried  on  by  a  Spanish 
subject  only. 

A  second  point  in  Marshall's  decision  was  that  the  insurance 
company  ought  to  have  known  that  the  vessel  would  take  all 
the  papers  necessary  to  make  the  voyage  legal  —  in  other 
words,  that  deception  would  be  practised. 

This  case  is  an  example  of  what  clearly  appears  to  be 
judicial  logrolling  for  the  others'  interests.  Likewise  was  a 
case,  later  on,  involving  the  interests  of  Associate  Justice 
Gabriel  Duvall,  who  was  an  extensive  Maryland  landowner, 
and  closely  affiliated  with  the  Carrolls.27  He  had  been  ap- 
pointed to  the  Supreme  Court  by  President  Madison,  in  1811. 
Many  of  Marshall's  brothers  and  relatives  were  directors  of 
turnpike,  ferry  and  canal  companies  in  Virginia,  and  Mar- 
shall and  Justices  Washington  and  Duvall  were  interested  in 
banks.28  But  how  varied  otherwise  were  their  total  inter- 
ests, it  is  not  possible  to  learn. 

27  See,  Case  of  Henry  Cassell,  Administrator,  etc.,  vs.  Charles  Car- 
roll of  Carrollton,  Wheaton's  Reports,  Supreme  Court  of  the  United 
States,  Vol.  XI:  134-171.     Justice  Story  decided  this  case  in  favor  of 
Carroll.     This  note  appears  in  Wheaton's  Reports,  p.  153 :     "  Mr.  Jus- 
tice Duvall,  being  a  landholder  in  Maryland,  did  not  sit  in  this  cause." 

28  In    the    case    of    M'Gruder    vs.    The    Bank    of    Washington    (IX 
Wheaton,  598),  Marshall,  Washington  and  Duvall  did  not  sit. 


278  HISTORY   OF   THE   SUPREME   COURT 

The  High  Virginia  Court  Denounces  the  Fairfax  Decision. 

It  was  fully  a  year  after  Story's  Fairfax  decision  before 
its  tremendous  import,  especially  as  regarded  the  enormous 
constitutional  powers  asserted  and  exercised  by  the  Supreme 
Court,  in  making  that  decision,  were  generally  understood. 
The  subject  of  the  recovery  or  restoration  of  confiscated  es- 
tates, or  claims  to  them,  had  long  been  a  sore  and  vital  one 
in  many  States.29  But  the  events  of  the  second  war  witli 
Great  Britain  more  or  less  subordinated  other  subjects  and 
agitations  in  the  popular  mind,  and  engrossed  public  atten- 
tion. 

When,  however,  in  April,  1814,  the  Supreme  Court  of  Ap- 
peals of  Virginia  defied  the  mandate  of  the  Supreme  Court 
of  the  United  States  in  the  Fairfax  case,  and  declared  that 
in  presuming  to  pass  on  appeal  upon  purely  State  litigations, 
the  Supreme  Court  of  the  United  States  had  usurped  powers, 
there  was  a  commotion.  The  sight  of  one  exalted  court  de- 
nouncing another  was,  indeed,  unusual. 

Point  by  point  the  judges  of  the  Supreme  Court  of  Appeals 
of  Virginia  in  seriatim  form  exhaustively  reviewed  the  his- 
tory of  the  Fairfax  litigation,  and  exposed  the  legal  sophistries 
that  had  been  employed  to  recover  the  estate.  But  the  chief 
burden  of  the  Virginia  court's  excoriation  of  the  Supreme 
Court  of  the  United  States  was  in  seeking  to  show  that  in 
even  hearing  that  case  after  it  had  been  decided  adversely 
to  the  Fairfax  claimants  by  the  highest  court  in  Virginia, 

29  In  New  York  and  other  States  the  same  chicanery  was  used  as  in 
Virginia.  Of  this,  Governor  Tompkins  complained  to  the  New  York 
Legislature,  in  his  message,  in  1812.  "  Our  treasury,"  he  said,  "  for 
upwards  of  twenty  years,  has  been  constantly  drained  by  the  discharge 
of  pretended  or  real  demands  against  confiscated  estates."  He  added 
that  systems  theretofore  devised  by  the  legislature  "  have  been  more  or 
less  parried  by  speculative  management  or  legal  ingenuity.  ...  It 
would,  perhaps,  contribute  materially  to  lessen  their  amount  in  future, 
were  you  to  make  void,  and  punish  as  fraudulent  and  criminal  specu- 
lators upon  the  State,  all  direct  or  indirect  purchasers  of  them"  [the 
confiscated  estates].— N.  Y.  Senate  and  Assembly  Journals,  1812:  6. 


MARSHALL   AND    HIS    CHIEF    COADJUTOR,    STORY  279 

the  Supreme  Court  of  the  United  States  had  exceeded  its 
Constitutional  powers.30  The  seriatim  opinions  of  the  judges 
of  the  Supreme  Court  of  Appeals  of  Virginia  were  penetrating 
and  unsparing.  Knowing,  as  they  did,  the  entire  history  of 
the  Fairfax  case  and  John  Marshall's  purchase  of  the  Fair- 
fax claim,  the  Virginia  judges  must  have  been  extremely  in- 
dignant to  invite  the  contempt  of  the  public  for  all  courts. 
They  knew  that  the  example- of  one  high  court  denouncing 
the  highest  court  in  the  country  could  not  fail  to  undermine 
respect  for  the  courts ;  for  if  courts  themselves  disagreed  vio- 
lently, what  was  the  general^public  to  think?  But  this  con- 
sideration in  nowise  deterred  the  judges  of  the  Virginia 
court ;  and  each  judge  concluded  his  seriatim  opinion  with  these 
extraordinary  pronouncements : 

Refuse  Obedience  to  the  Supreme  Court. 

Judge  Cabell :  "  Upon  every  view  of  the  subject  which 
I  have  been  able  to  take,  I  am  of  the  opinion  that  the  writ  of 
error  was  improvidently  allowed,  and  that  this  court  should 
decline  obedience  to  the  mandate  of  the  Supreme  Court  of  the 
United  States."  31 

Judge  Brooks  declared  that  the  mandate  was  issued  in  vio- 
lation of  the  Constitution  of  the  United  States,  "  and  that 
obedience  to  the  mandate  ought  to  be  refused."  32 

Judge  Roane :  "  My  conclusion  consequently  is,  that  every- 
thing done  in  this  cause,  subsequently  to  the  judgment  of 
reversal  by  this  court  is  coram  non  judice,  unconstitutional 
and  void,  and  should  be  entirely  disregarded  by  this  court. 

»  33 

Judge  Fleming  also  denounced  the  action  of  the  Supreme 

30Munford's  Reports  (Supreme  Court  of  Appeals  of  Va.).  Vol. 
IV:  1-59- 

^Ibid.,  16. 

82  Ibid.,  25. 

33  Ibid.,  54.  Coram  non  judice  —  that  is,  before  a  court  which  was 
not  the  proper  judge. 


280  HISTORY    OF    THE    SUPREME   COURT 

Court  of  the  .United  States,  saying  that  it  was  in  violation  of 
the  Constitution  and  that  "  it  is  inexpedient  for  this  court  to 
obey  the  mandate  in  question."  34 

This  was  the  collective  opinion  of  the  judges  of  the  Su- 
preme Court  of  Appeals  of  Virginia,  as  entered  on  the  rec- 
ords : 

"  The  court  is  unanimously  of  the  opinion  that  the  appellate 
power  of  the  Supreme  Court  of  the  United  States  does  not  ex- 
tend to  this  court,  under  a  sound  construction  of  the  Constitu- 
tion of  the  United  States ;  —  that  so  much  of  the  25th  sec- 
tion of  the  act  of  Congress,  to  establish  the  judicial  courts 
of  the  United  States,  as  extends  the  appellate  jurisdiction  of 
the  Supreme  Court  to  this  court,  is  not  in  pursuance  of  the 
Constitution  of  the  United  States;  that  the  writ  of  error  in  this 
case  was  improvidently  allowed  under  the  authority  of  that 
act;  and  that  obedience  to  its  mandate  be  declined  by  this 
court."  35 

Here  was  an  unparalleled  situation  —  a  State  court  refusing 
obedience  to  the  highest  National  judicial  tribunal.  How  did 
the  Supreme  Court  of  the  United  States  meet  it?  Did  the 
Supreme  Court  hale  up  the  Virginia  judges  for  contempt  of 
court  as  they  would  have  done  had  the  defiance  come  from 
ordinary  men?  By  no  means.  It  neither  issued  writs  for 
contempt,  nor  did  it  even  remotely  threaten  imprisonment. 
The  issue  came  up  before  it  in  1816,  under  the  form  of  the 
case  of  "  Martin,  Heir-at-law  and  Devisee  of  Fairfax  vs.  Hun- 
ter's Lessee.36  The  question  was  elaborately  argued  as  to 
whether  the  Supreme  Court  of  the  United  States  had  acted 
within  its  Constitutional  power. 

Among  the  legal  profession  a  singular  interest  was  mani- 
fested as  to  just  what  attitude  the  Supreme  Court  would  take  in 
reply  to  the  defiance  of  the  Virginia  Court  of  Appeals. 

34  Munford's  Reports,  Vol.  IV  :  58. 

35  Ibid.,    58-59. 

36Wheaton's  Reports  (Supreme  Court  of  the  United  States),  Vol. 
I:  304-382, 


MARSHALL   AND    HIS   CHIEF    COADJUTOR,    STORY  28l 

Story  Pacifically  Reaffirms  His  Decision. 

Justice  Story  handed  down  the  decision.  Instead  of  casti- 
gating the  Virginia  judges,  he  urbanely  went  out  of  his  way 
to  say  suave  things  of  them,  confining  his  decision  to  an  ar- 
gument that  the  Supreme  Court  of  the  United  States  had 
acted  constitutionally. 

"  The  questions  involved  in  this  judgment,"  he  held,  "  are 
of  great  importance  and  delicacy.  Perhaps  it  is  not  too  much 
to  affirm,  that  upon  their  right  decision  rest  some  of  the  most 
solid  principles  which  have  hitherto  been  supposed  to  sustain 
and  protect  the  Constitution.  The  great  respectability,  too, 
of  the  court  whose  decisions  we  are  called  upon  to  review, 
and  the  entire  deference  which  we  entertain  for  the  learning 
and  ability  of  that  court,  add  much  to  the  difficulty  of  the 
task  which  has  so  unwelcomely  fallen  upon  us.  .  .  ." 3T 

Story  decided  that  the  appellate  jurisdiction  of  the  United 
States  Supreme  Court  extended  to  a  final  judgment  or  decree 
in  any  suit  in  the  highest  court  of  law  or  equity  of  a  State, 
where  was  drawn  into  question  these  points:  The  validity 
of  a  treaty,  a  statute  of  the  United  States,  or  an  authority 
exercised  under  the  United  States,  in  cases  where  the  decision 
was  against  their  validity.  This  jurisdiction,  he  held,  also 
covered  all  cases  where  there  was  any  question  of  the  validity 
or  authority  of  a  State  law  on  the  ground  of  its  being  repug- 
nant to  the  Constitution,  or  to  treaties,  laws  of  the  United 
States,  etc. 

In  brief,  Story  decided  the  Fairfax  suit  favorably  to  the 
Marshall  interests,  and  then  when  he  was  attacked  by  four 
judges  for  having  acted  unconstitutionally,  Story  acted  as  a 
judge  on  his  own  actions  and  decided  that  Story  acted  consti- 
tutionally. 

In  these  chapters  we  have  given,  for  the  first  time,  the 
origin  and  history  of  the  noted  case,  in  1816,  of  Martin  vs. 

37  ibid.,  324. 


282  HISTORY   OF   THE   SUPREME   COURT 

Hunter's  Lessee,  which  case  has  ranked,  in  its  assertion  of 
the  sovereign  powers  of  the  Supreme  Court  of  the  United 
States,  as  one  of  the  most  important  in  all  of  that  court's  an- 
nals. But  although  a  multitude  of  writers  and  lawyers  have 
cited  the  1816  case,  it  has  been  reserved  for  this  present  work 
to  present  the  actual  facts  —  facts  revealing  that  it  originated 
in  Chief  Justice  John  Marshall's  own  personal  interests,  al- 
though no  doubt,  the  Supreme  Court  would  inevitably  have 
taken  that  stand  at  some  other  time  and  in  some  other  case. 
Those  who  have  read  the  conventional  glowing  accounts  of 
Marshall's  integrity  may  be  tempted  to  inquire  surprisedly : 
Can  this  be  so  ?  We  answer :  These  are  the  facts  as  they  are 
set  forth  in  the  records. 


CHAPTER  VIII 

THE  FURTHER  COURSE  OF  THE  SUPREME  COURT  UNDER 

MARSHALL 

From  the  time  of  the  Fairfax  decision  to  that  of  Marshall's 
decease,  covering  a  period  of  a  score  of  years,  four  important 
lines  of  action  were  determined  by  the  decisions  of  the  Supreme 
Court  of  the  United  States.  These  were : 

1.  The  intrenchment  of  the  doctrine  that  a  grant  or  allow- 
ance of  privilege  to  a  corporation  was  an  irrevocable  vested 
and  perpetual  right  of  property. 

2.  The  extension  of  the  principle  of  a  widening  of  National 
authority,  and  further  concentration  of  power  in  the  National 
Government. 

3.  The  perpetuation  of  negro  slavery. 

4.  The  validation  of   vast   fraudulent  private  land  claims 
comprehending  millions  of  acres  of  land  in  Florida  and  in  the 
Louisiana  Purchase. 

The  Meaning  of  Successive  Decisions. 

The  common  belief  that  the  first  of  these  was  originally  set- 
tled by  the  noted  Dartmouth  College  decision  is  incorrect. 
We  have  seen  in  detail,  how,  in  the  case  of  Fletcher  vs.  Peck 
(that  collusive  suit  for  the  validation  of  the  act  bribed  through 
the  Georgia  Legislature  making  a  vast  grant  of  35,000,000 
acres),  Marshall  decided  that  a  legislative  act  was  a  contract 
incapable  of  annulment  by  subsequent  legislation.  That  deci- 
sion was  the  first  precedent.  The  case  of  New  Jersey  vs.  Wil- 
son, decided  two  years  later,  was  the  second.  This  case,  ad- 
mittedly bearing  unfailing  signs  of  collusion,  was  decided 

283 


284  HISTORY   OF   THE   SUPREME   COURT 

likewise  by  Marshall.  He  held  that  in  passing  a  certain  act, 
the  Legislature  had  forever  contracted  away  the  right  to  tax 
certain  private  lands.  The  legislative  act,  so  he  decided,  was 
a  "  contract,"  and  as  such  came  within  the  scope  of  that 
clause  "in  the  Constitution  prohibiting  the  impairment  of  the 
obligation  of  contracts.1 

Thus,  a  legislative  grant  or  franchise  was  construed  into 
being  the  same  as  a  contract  between  private  individuals. 
In  Marbury  vs.  Madison  we  have  seen  Marshall,  in  the  very 
act  of  annulling  an  act  passed  by  Congress,  ostentatiously 
announcing  that  the  Republic  was  founded  on  the  principle  of 
rule  by  the  people.  The  vaunted  theory  was  that  the  peo- 
ple were  sovereign,  and  that  legislatures  were  their  plastic 
representatives  to  transform  their  will  into  law.  If  the  peo- 
ple were  sovereign,  and  legislatures  their  instruments,  there 
could,  according  to  the  logic  of  that  theory,  be  no  limit  to 
the  legislative  power  of  revoking  any  law  found  to  be  injurious 
to  the  common  welfare.  But  Marshall,  while  dexterously 
using  that  theory  as  a  pretext,  demonstrated  that  the  Supreme 
Court  of  the  United  States  was  the  sovereign,  omnipotent 
power. 

Interpreted  into  plain  language  these  decisions  meant  that 
the  living  were  to  be  ruled  in  perpetuity  by  the  acts  of  the 
dead ;  the  skeleton  was  to  have  his  grip  on  the  animate ;  the 
deeds  of  the  rulers  of  past  generations  were  to  be  engrafted 
in  the  authority  of  law  over  all  future  generations. 

It  mattered  not  how  much  certitude  of  fraud  and  bribery 
in  particular,  and  turpitude  in  general,  lay  originally  behind 
definite  acts  or  laws.  The  moment  those  laws  became  officially 
engrossed  and  recognized  as  formally  adopted,  they  were  in- 
vested with  the  full  sanctity  of  perpetual  law.  The  essence 
was  nothing;  the  form  was  everything. 

That  laws  proved  to  be  engines  of  fraud  and  spoliation  for 

1  Cranch's  Reports,  Supreme  Court  of  the  United  States,  Vol.  VII : 
164. 


FURTHER   COURSE  OP  COURT   UNDER   MARSHALL  285 

the  benefit  of  the  favored  few,  and  causes  of  oppression  to  the 
mass,  was  beside  the  point  in  the  majestic  eye  of  the  Law. 
What  if,  supposing  special  acts  to  have  been  honestly  enacted, 
they  were  self-evidently  the  archaic  survivals  of  bygone  times, 
utterly  lacking  adaptation  to  the  conditions  of  the  mass  of 
newer  generations?  These  considerations  were  of  no  effect; 
law,  which  is  merely  the  register  of  the  will  of  the  group  or 
class  having  the  power  to  enact  it,  outlasts  its  creators ;  long 
after  its  authors  have  moldered  in  their  tombs,  and  their  very 
names  have  often  become  lost  in  the  phantasmagoria  of  Time, 
their  laws  still  stand,  fresh,  awful  and  commanding. 

On  examination,  there  will  be  found  beneath  this  apparently 
senseless  course,  not  only  acute  sense,  but  a  definite  policy  of 
self-preservation  and  development. 

Overlooking  the  special  personal  interests  of  the  judges,  and 
appraising  the  vitals  of  their  decisions  as  applied  to  the 
broader  question  of  class  interests  and  conflicts,  it  will  be 
perceived  that  those  decisions  were  harmoniously  consonant 
with  the  varying  necessities  of  the  dominant  class.  A  number 
of  aggressive,  acquisitive,  predacious  individuals  in  one  gene- 
ration seize  property,  or  corruptly  get  grants  and  laws  endow- 
ing them  with  immense  property  and  mighty  privileges.  They 
become  founders  of  a  propertied  aristocracy.  By  further  laws 
and  predatory  schemes,  their  descendants  enlarge  their  heredi- 
tary possessions,  extend  themselves  as  capitalists  in  multi- 
farious ways,  and  by  reason  of  their  wealth,  aggrandize  them- 
selves as  the  rulers  of  the  land.  They  either  hold  the 
important  political  and  judicial  offices  themselves,  or  they 
carefully  select  able  instruments  upon  whom  they  can  unre- 
servedly depend. 

The  basis  of  their  wealth  and  power  is  law,  and  the  ad- 
vantage taken  of  each  changing  condition  by  law.  Their  in- 
terest obviously  requires  that  those  laws  be  held  sacred  and  per- 
petual, unless  that  same  self-interest,  keeping  pace  with  altering 
economic  conditions,  demands  the  supplanting  of  certain  old, 


286  HISTORY   OF   THE    SUPREME   COURT 

by  newer,  laws  which,  in  turn,  are  to  be  enthroned  as  sacred 
and  perpetual.  The  ruling  class  can  afford  to  take  no  chances 
with  the  vicissitudes  of  legislation  in  a  country  where  theo- 
retically the  popular  will  is  sovereign.  Nor  can  they  tolerate 
the  prospect  of  being  under  constant  alarm  from  the  ever- 
present  fear  of  legislation  threatening  the  ancient  foundations 
of  their  power.  In  America  a  theoretical  popular  representa- 
tion conflicts,  in  principle,  although  not  in  practice,  with  capi- 
talist aims.  From  the  beginning,  virtually  all  special  plunder- 
ing laws  have  been  secured  by  fraud  or  bribery,  or  both.  That 
reason  alone  furnishes  sufficiently  conclusive  grounds  for  the 
annulment  of  those  laws  by  a  legislature  determined  upon 
revocation.  Hence,  to  declare  that  a  legislative  act  is  a  con- 
tract, and  that  no  legislature,  therefore,  has  the  constitutional 
power  of  voiding  a  contract,  is  to  insure  to  the  capitalist  class 
the  permanency  of  possessions,  corruptly  gotten. 

To  this  fabric  one  final  finishing  touch  was  needed ;  this  was 
supplied  by  the  Dartmouth  College  decision.  • 

The  Dartmouth  College  Case. 

Concisely  stated,  the  Dartmouth  College  case  grew  out  of 
these  circumstances :  Dartmouth  College,  in  New  Hampshire, 
had  been  founded,  in  the  year  1769,  by  a  charter  granted  by 
Governor  Wentworth,  in  the  name  of  the  Crown.  The  presi- 
dency of  the  college  developed  to  be  a  sort  of  dynasty,  the 
first  president,  Eleazer  Wheelock,  having  before  his  death  in 
1779,  appointed  his  son,  John  Wheelock,  to  succeed  him.  In 
about  the  year  1797,  opposition  to  Wheelock  manifested  itself 
on  the  part  of  members  of  the  board  of  trustees.  A  long  fac- 
tional struggle,  part  religious,  and  in  part  political,  then  set 
in  to  get  control  of  the  institution ;  Wheelock  was  a  Presby- 
terian, his  enemies  Congregationalists ;  they  were  Federalists, 
and  he  was  driven  by  force  of  circumstances  into  the  opposite 
political  camp.  As  Congregationalism  was  practically  the  es- 
tablished State  church  in  New  Hampshire,  and  as  the  Legis- 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  287 

lature  was  Federalist,  Wheelock's  enemies  were  able  to  muster 
large  strength.  In  1809,  they  captured  control  of  the  board 
of  trustees,  and  in  1815  summarily  removed  him  from  office. 

But,  in  1816,  the  anti-Federalists  elected  William  Plumer 
as  Governor  of  New  Hampshire,  and  a  Legislature  of  the  same 
political  cast.  Acts  were  thereupon  passed  amending  the  char- 
ter of  Dartmouth  College.  The  number  of  trustees  was  in- 
creased from  twelve  to  twenty-one,  and  a  board  of  overseers 
was  created  for  the-  purpose  of  exercising  a  veto  power  on 
certain  acts  of  the  trustees.  The  outcome  of  these  legislative 
acts  was  the  restoration  of  Wheelock  to  office,  and  the  placing 
of  his  adherents  in  virtual  control.  The  college  was  reorgan- 
ized, and  called  a  university. 

The  old  trustees  opposed  to  Wheelock  brought  suit  in  the 
New  Hampshire  courts  to  set  aside  the  legislative  acts  on 
these  grounds:  That  those  acts  were  opposed  to  the  general 
principles  of  government ;  that  they  were  contrary  to  various 
provisions  of  the  State  Constitution ;  and  that  they  violated 
the  particular  clause  of  the  Federal  Constitution  forbidding 
legislation  impairing  the  obligation  of  a  contract.  The  highest 
New  Hampshire  court  decided  against  the  old  trustees  on 
every  point.2  The  case  was  then  carried  on  appeal  to  the  Su- 
preme Court  of  the  United  States,  but  the  only  point  involved 
in  that  appeal  was  that  relating  to  the  contract  clause  in  the 
Constitution  of  the  United  States.3 

Daniel  Webster,  himself  a  graduate  of  Dartmouth  College, 
argued  the  case  for  the  old  trustees  before  the  Supreme  Court 
of  the  United  States.  Webster,  as  we  have  noted,  married, 
after  the  death  of  his  first  wife,  a  daughter  of  Herman  LeRoy, 
whose  acquisition,  together  with  William  Bayard  and  others, 
of  large  estates  that  they  themselves  acknowledged  to  have 

2  New  Hampshire  Reports,  Vol.  I:  in.    The  full  report  of  the  case, 
containing  the  arguments,  is  reprinted  in  65  New  Hampshire  Reports, 

473- 

3  Case    of    Trustees    of    Dartmouth    College    vs.    Woodward,    IV 
Wheaton,  518. 


288  HISTORY    OF    THE    SUPREME    COURT 

been  originally  secured  by  fraud,  has  been  described  in  Chap- 
ter I.  For  many  years,  Webster  was  the  regular  attorney  for 
the  Bank  of  the  United  States,  the  flagrant  corruptions  of 
which  are  related  in  this  chapter.  He  became  the  attorney  for 
the  immense  fraudulent  Mitchell  land  claim,  which  was  later 
validated  by  the  Supreme  Court  of  the  United  States,  and  the 
details  of  which  are  also  narrated  in  this  present  chapter.  As 
a  corporation  lawyer,  he  was  one  of  the  most  noted  of  his 
day ;  he  was  counsel  for  a  large  number  of  miscellaneous  cor- 
porations. 

Did  the  Supreme  Court  Become  Emotional? 

In  his  biographical  work  on  Webster,  Senator  Henry  Cabot 
Lodge  says  that,  first  of  all,  Webster  adroitly  appealed  to 
the  partisan  prejudices  of  the  Supreme  Court.  Mr.  Lodge 
tells  us  that, 

"  In  the  midst  of  all  the  legal  and  constitutional  arguments, 
relevant  and  irrelevant,  even  in  the  pathetic  appeal  which  he 
used  so  well  in  behalf  of  his  alma  mater,  Mr.  Webster  boldly 
and  yet  skillfully  introduced  the  political  view  of  the  case.  So 
delicately  did  he  do  it  that  an  attentive  listener  did  not  realize 
that  he  was  straying  from  the  field  of  '  mere  reason '  into  that 
of  political  passion.  Here  no  man  could  equal  him  or  help 
him,  for  here  his  eloquence  had  full  scope,  and  on  this  he 
relied  to  arouse  Marshall,  whom  he  thoroughly  understood. 
In  occasional  sentences  he  pictured  his  beloved  college  under 
the  wise  rule  of  Federalists  and  the  Church.  He  depicted  the 
party  assault  that  was  made  upon  her.  He  showed  the  citadel 
of  learning  threatened  with  unholy  invasion  and  falling  help- 
lessly into  the  hands  of  Jacobins  and  free  thinkers."  4 

Professor  Goodrich,  a  spectator  of  the  scene,  wrote  (ac- 
cording to  Mr.  Lodge's  quotation)  that  Webster,  in  the  course 
of  his  argument,  predicted  great  disaster  for  all  colleges,  and 

4 "Life  of  Webster"  (American  Statesmen  Series),  p.  87. 


FURTHER   COURSE  OF  COURT   UNDER    MARSHALL  289 

for  the  private  rights  of  individuals,  if  the  legislative  acts 
of  New  Hampshire  should  be  upheld.  Goodrich  tells  how  "  in 
broken  words  of  tenderness,"  Webster  spoke  pathetically  of 
his  attachment  to  the  college,  and  how  Marshall  and  other 
Justices  were  moved  to  tears. 

If  these  accounts  are  correct,  they  throw  a  singular  light 
upon  the  Supreme  Court  of  the  United  States.  Professing  to 
live  and  move  in  an  exalted  atmosphere  far  above  vulgar  po- 
litical currents  and  emotional  considerations;  asserting,  reas- 
serting and  reiterating  that  sentiment  never  entered  into  their 
deliberations  and  judgment,  here  some  of  them  were  being 
swayed  by  partisan  prejudices  and  upset  by  emotional  appeals. 
They  who  assumed  the  high  proud  role  of  being  austere  ex- 
pounders of  the  law,  unaffected  by  political  passions  or  senti- 
mental impressions,  allowed  themselves  to  be  moved  like  an 
audience  by  an  actor's  skillful  pathos. 

Where,  then,  was  their  boast  that  their  only  concern  was 
with  the  cold  business  of  applying  the  law?  Cases  had  been 
before  them  revealing  that  thousands  of  families  had  been  per- 
emptorily driven  from  their  homes,  and  reduced  to  destitu- 
tion, by  the  claims  and  exactions  of  land  -jobbers.  But  far 
from  causing  a  moist  eye  on  the  indurated  Supreme  Court 
bench,  those  fraudulent  claims  had  been  justified  and  vali- 
dated. The  hard  conditions  burdening  hundreds  of  thousands 
of  laborers  had  never  caused  the  flutter  of  the  eyelid.  The 
horrors  of  the  slave  traffic  —  abominations  which  would  seem 
incredible  were  it  not  that  so  many  reports  attest  them  —  in- 
stead of  causing  anguish,  when  the  facts  were  frequently  be- 
fore the  Supreme  Court,  were  justified  and  their  continuance 
allowed.  But  the  prospect  of  an  obscure  endowed  college,  de- 
clining into  disruption  and  adversity,  so  deeply  excited  their 
commiseration  that  they,  forsooth,  were  "  moved  to  tears  " ! 

Those  touching  accounts,  however,  have  a  large  element  of 
fiction.  The  members  of  the  Supreme  Court  were  too  old 
and  too  well  seasoned  not  to  penetrate  acting  when  they  saw 


2QO  HISTORY   OF  THE   SUPREME   COURT 

it.  As  an  orator,  Webster  was  sonorously  rhetorical ;  and,  as 
was  the  custom  of  the  day,  he  artistically,  like  Pitt,  combined 
elocution  with  effective  dramatic  by-play. 


The  Justices'  Class  Interests  and  Views. 

But  to  believe  that  such  transparent  artifices  influenced  any 
of  the  members  of  the  Supreme  Court  would  be  too  far-fetched 
a  reflection  upon  their  intelligence.  No  such  methods  had 
been  used  in  the  Fletcher  vs.  Peck  case,  yet  they  had  ren- 
dered a  decision  which  was  the  progenitor  of  the  Dartmouth 
College  decision.  Methods  such  as  these  were  not  necessary 
to  influence  Marshall,  Story  and  other  Justices.  Marshall's 
own  varied  interests  were  at  stake,  as  well  as  those  of  his 
brothers  and  relatives,  and  in  a  vastly  wider  degree,  those  of 
the  whole  class  represented  by  him.  Story  had  his  bank,  the 
charter  of  which  he  had  put  through  while  Speaker  of  the 
Massachusetts  House  of  Representatives.  Many  of  Story's 
friends,  political  associates  and  former  clients,  were  owners  of 
diverse  corporation  charters. 

In  fact,  Story  .made  no  attempt  to  conceal  his  timocratic 
views  that  the  property  interests  should  dominate  government. 
He  openly  avowed  his  opposition  to  giving  the  propertyless  the 
right  to  vote. 

This  he  did,  in  1820,  when  he  was  a  member  of  the  Massa- 
chusetts Constitutional  Convention.  There  he  made  an  elab- 
orate argument  for  a  continuing  property  qualification  for  vot- 
ers. Eulogizing  the  rich,  and  at  the  same  time  minimizing 
the  danger  from  them,  he  appealed  skillfully  to  the  interests 
and  prejudices  of  the  majority  of  delegates. 

His  argument  was  directed  against  the  proposition  to  change 
the  basis  of  the  Massachusetts  Senate  from  valuation  to  that 
of  population.  The  wealth  of  "  opulent  and  munificent  citi- 
zens .  .  .  has  spread  itself  into  a  thousand  channels  of 
charity  and  public  benevolence."  It  had  "  reared  temples  to 
the  service  of  the  most  high  God,"  etc.,  etc.  "  My  dread," 


FURTHER    COURSE   OF   COURT   UNDER    MARSHALL  2QI 

he  exclaimed,  "  has  never  been  of  the  Senate,  but  of  that  mul- 
titudinous assembly  [the  insurrectionists]  which  has  been  seen 
within  these  walls,  and  may  be  again  if  times  of  political 
excitement  should  occur."  He  pleaded  further  against  "  an 
overwhelming  representation  "  of  the  propertyless.5 

This  speech,  of  an  intensely  class  character,  gives  the  clear- 
est evidence  of  how  Justice  Story  frankly  exalted  the  supreme 
rights  of  property. 

Similarly,  Justice  Brockholst  Livingston  had  his  ramifica- 
tions of  interests,  and  so  had  all  of  the  other  Justices.  Some 
writers  maintain  that  Story  and  Livingston  had  originally  been 
opposed  to  deciding  in  favor  of  the  old  trustees  of  Dartmouth 
College,  but  that  they  had  been  gained  over  between  the  time 
that  the  arguments  were  made  and  the  date  of  the  decision 
in  February,  1819. 

In  a  sense,  this  might  have  been  so ;  if  so,  this  point  legiti- 
mately occurs:  Webster  was  long  a  powerful  figure  in  the 
Government.  The  Merchants'  Bank  of  Salem,  of  which  Story 
was  a  director,  and  later  president,  secured  the  lucrative  privi- 
lege of  having  large  sums  of  Government  money  placed  on  de- 
posit in  its  treasury.  Was  this  privilege,  so  long  continued, 
merely  an  altruistic  expression  of  confidence  in  the  soundness 
of  Story's  bank?  If  Story  had  exhibited  himself  so  zealous 
in  promoting  the  Congressional  and  legal  ends  of  a  case  in- 
volving a  vast  land  grant  conclusively  proved  to  have  been 
obtained  by  fraud  and  corruption,  would  he  nicely  scruple  at 
other  matters?  Story,  as  we  have  seen,  wrote  before  the 
Fletcher  vs.  Peck  decision,  when  he  was  attorney  for  Peck, 
that  he  spent  much  of  his  time  dining  with  the  Supreme  Court 
judges.  Did  Webster  frequently  dine  with  Story?  Shirley 
says  that  Webster  was  busy,  through  various  intermediaries, 
reaching  Chancellor  Kent,  who  was  a  great  friend  of  Justice 
Brockholst  Livingston,  and  that  Webster,  in  August,  1818, 

5 "  Journal  of  Debates  and  Proceedings  of  the  Massachusetts  Con- 
vention, 1820  " :  283-295. 


292  HISTORY   OF  THE   SUPREME  COURT 

supplied  Story  with  copies  of  his  argument  "  to  be  distributed 
by  him  to  a  portion  of  the  judges."  ° 


Property  Rights  Prodigiously  Extended. 

When  the  decision  was  handed  down  by  Marshall,  all  of 
the  Justices  concurred  except  Duvall,  who  dissented  without 
filing  an  opinion,  and  Todd,  whom  illness  kept  away. 

The  grand  essential  of  the  decision  was  that  corporate 
charters  and  franchises  were  contracts ;  that  they  were  vested 
property  rights,  in  no  way  subject  to  repeal.  This  formidable 
doctrine,  representing  nothing  but  the  say-so  edict  of  a  hand- 
ful of  men,  has  become,  perhaps  more  than  any  other  single 
decision,  a  constituent  ingredient  of  judge-made  constitutional 
law. 

What  James  Wilson,  Gouverneur  Morris  and  other  pro- 
moters of  the  Bank  of  North  America  had  begun  in  the  Fed- 
eral Constitutional  Convention  of  1787,  was  now  carried  to 
its  logical  conclusion.  From  the  Dartmouth  College  decision 
to  the  present  day,  capitalistic  corporations  have  been  enabled 
to  expand  to  a  boundless  reach  of  privilege  and  power.  A 
charter  is  a  distinct  property  right;  being  property,  the  mere 
legislative  franchise  right  can  be  capitalized  as  tangible  prop- 
erty. Upon  this  legislative  right  vast  sums  of  stock  have 

G "  Dartmouth  College  Causes,"  201.  Webster  was  an  attorney  for 
the  Salem  Bank,  and  other  local  banks. —  See,  Mass.  Reports,  Vol. 
XVII :  39,  etc. 

The  fact  of  judges  owning  stock  in  bank,  insurance  and  other  com- 
panies was  such  a  notorious  scandal,  that  finally,  in  1836,  a  proposed 
new  Penal  Code  was  suggested.  Chancellor  Kent'wrote  to  its  author: 
.  .  .  "  But  I  complain  more  loudly  of  your  restraints  on  judges,  at 
p.  38.  You  prohibit  a  judge  from  receiving  any  gift,  except  by  will, 
from  a  stranger.  Now  I  do  think  this  is  unjust,  and  assume  an  un- 
warrantable distrust  of  judicial  integrity.  At  p.  40  you  go  further, 
and  make  it  penal  for  a  judge  to  be  a  stockholder  in  a  bank  or  insur- 
ance company.  I  have  read  this  article  with  surprise.  You  might  as 
well  make  it  penal  for  a  judge  to  own  houses  and  lands,  or  bonds 
and  mortgages,  or  even  a  beautiful  and  accomplished  wife,"  etc.,  etc. — 
"  American  Jurist,"  Vol.  XVI :  365.  In  the  same  letter,  Kent  wrote  as 
to  offenses  against  injuries  to  property:  "I  am  a  friend  to  personal 
chastisement  and  hanging"  (p.  370). 


FURTHER    COURSE  OF   COURT    UNDER    MARSHALL  293 

been  issued,  which  stock  is  nothing  more  or  less  than  a  colos- 
sal, inexhaustible  power  of  taxing  the  people  on  all  necessities. 


The  Powers  of  the  Government  Expanded. 

Two  decisions  now  enlarged  the  powers  of  the  National 
Government. 

The  first  of  these,  in  the  case  of  McCulloh  vs.  the  State  of 
Maryland,  was  that  by  which  it  was  decided  that  Congress 
had  power  to  charter  a  national  bank.  The  charter  of  the 
first  Bank  of  the  United  States  had  expired  in  1811.  After 
several  years  of  prodigious  lobbying,  the  promoters  of  its  suc- 
cessor, also  called  the  Bank  of  the  United  States,  managed  to 
get  a  charter  from  Congress.  This  bank  was  opened  on  Jan- 
uary i,  1817;  and  it  was  of  the  Charleston,  S.  C.,  branch  of 
this  institution  that  Joseph  Johnson,  brother  of  Associate  Jus- 
tice William  Johnson,  was  president  from  1818  to  1823. 

Benton  says  that  when  Nicholas  Biddle,  long  the  president 
of  this  Bank  of  the  United  States,  had  any  communication  to 
make  for  the  influencing  of  the  public  mind,  he  invariably 
used  John  Quincy  Adams  as  his  intermediary.  The  means 
by  which  the  second  charter  was  obtained  from  Congress  were 
not  disclosed  in  official  reports.  But  it  appears  from  reports 
made  by  an  investigating  committee  of  Congress,  in  1831, 
that  a  considerable  number  of  members  of  Congress  had  been 
for  years  on  the  payrolls  of  the  bank,  and  that  large  sums, 
under  the  guise  of  loans,  had  been  given  to  editors  and  others 
for  the  influencing  of  public  opinion.7 

Benton  cites  a  report  made  by  a  committee  of  stockholders 
of  the  bank  in  which  the  statement  was  made  that  when,  in 
1830,  the  Bank  of  the  United  States  began  its  fight  for  a  re- 
charter,  nearly  thirty  million  dollars,  in  loans,  not  of  a  mercan- 
tile character,  were  made  by  Biddle.8  The  beneficiaries  of 

7  Reports  Nos.  460-463.    First  Session,  Twenty-second  Congress,  1831. 
8 "  Thirty  Years  in  the  Senate,"  Vol.  II :  365.     Benton  was  long  a 
powerful  politician,  and  a  leader  of  the  Democratic  Party. 


294  HISTORY   OF   THE   SUPREME   COURT 

these  loans  were,  according  to  Benton,  editors,  politicians  and 
every  approachable  person  of  influence  whose  vote  or  voice 
was  useful  in  the  attempt  to  perpetuate  this  chartered  mo- 
nopoly. During  his  tenure  of  office,  Biddle  paid  out  the  great 
sum  of  $1,018,000,  for  which  no  vouchers  could  be  found," 
and  misappropriations  by  other  officers  of  the  bank  were  com- 
mon. 

Taken  by  itself,  Benton's  work  might  be  open  to  the  suspi- 
cion of  being  one-sided,  since  he  wrote  retrospectively  as  an 
intense  partisan  opponent  of  the  Bank  of  the  United  States, 
and  he  had  been  one  of  its  most  bellicose  antagonists  during 
the  series  of  years  when  the  question  of  its  chartering  or  aboli- 
tion was  one  of  the  great  political  issues. 

His  statements,  however,  are  not  only  borne  out  by  the 
reports  of  that  institution  itself,  and  of  committees  of  Con- 
gress, and  court  records,  but  even  when  he  makes  a  general 
statement  such  as  the  securing  by  the  Bank  of  the  United 
States  of  a  State  charter  from  the  Legislature  of  Pennsylva- 
nia, in  1836,  by  bribery,  he  states  the  case  correctly,  although 
omitting  to  give  the  specific  facts.  In  point  of  fact,  accord- 
ing to  the  findings  of  an  investigating  committee  appointed  by 
the  Pennsylvania  Legislature  in  1840,  the  Bank  of  the  United 
States  had  corruptly  expended  $136,000  in  Pennsylvania  for 
a  recharter.10  The  fuller  details  of  the  continuing  corrup- 
tions and  frauds  of  the  Bank  of  the  United  States  belong  more 
appropriately  to  a  later  chapter  of  this  present  work,  where 
they  are  described  at  length.  That  decision,  in  1819,  confirm- 
ing the  constitutional  power  of  Congress  to  charter  a  bank, 
may  serve  as  a  useful  precedent  in  the  project,  now  under 
way,  on  the  part  of  the  great  financial  magnates,  to  establish 
a  Central  Bank,  with  a  complete  monopoly  of  the  money  re- 
sources of  the  United  States. 

The  second  case  in  which  the  Supreme  Court  of  the  United 

9  "  Thirty  Years  in  the  Senate,"  Vol.  II :  366. 

10  Pa.  House  Journal,  1842,  Vol.  II :  Appendix,  172-531. 


FURTHER   COURSE   OF   COURT   UNDER    MARSHALL  295 

States  extended  the  authority  of  the  National  Government  was 
in  an  action  growing  out  of  the  various  legislative  acts  of  the 
New  York  Legislature  "  granting  a  steamboat  monopoly  to 
Livingston  and  Fulton.  The  rights  to  this  monopoly  had 
passed  by  assignment  to  one  Ogden,  who  had  secured  a  per- 
petual injunction  in  the  New  York  Court  of  Errors  against 
Gibbons,  a  competitor  and  trespasser.  In  appealing  to  the 
Supreme  Court  of  the  United  States,  Gibbons  was  really  fight- 
ing the  cause  of  the  whole  commercial  world  which  demanded 
that  the  legal  monopoly  be  abolished. 

Chief  Justice  Marshall  in  1824  declared  the  New  York  acts 
void  on  the  ground  that  they  were  repugnant  to  that  clause 
of  the  Constitution  authorizing  Congress  to  regulate  com- 
merce among  the  several  States.12  Coincident  with  the  date 
of  this  decision,  and  as  a  result  of  it,  was  the  rise  of  one  of 
the  largest  present  fortunes  in  America  —  the  Vanderbilt 
fortune.  Beginning  in  the  steamboat  business,  Commodore 
Cornelius  Vanderbilt,  by  a  policy  of  enterprise,  extortion  and 
aggressiveness,  and  a  huge  system  of  blackmail,13  obtained  the 
original  millions  enabling  him  later  to  become  a  railroad  mag- 
nate. 

Another  Livingston  Representative  Appointed. 

That  the  Livingston  family,  however,  was  still  a  powerful 
factor  in  National  politics  was  shown  by  the  appointment  of 
Smith  Thompson,  of  New  York,  to  succeed  Brockholst  Liv- 
ingston (whose  seat  had  become  vacant  in  1823),  as  an  Asso- 
ciate Justice  of  the  Supreme  Court  of  the  United  States. 
Thompson  had  studied  law  with  Chancellor  Kent,  that  noted 
expounder  and  defender  of  the  all-pervading  and  dominating 
rights  of  property  as  opposed  to  those  of  human  life.  Thomp- 

11  Described  in  Chapter  V. 

12  Case  of  Gibbons  vs.  Ogden,  IX  Wheaton,  1-240. 

13  The  full   facts  are  given  in  the  "  History  of  the  Great  American 
Fortunes,"  Vol.  II. 


296  HISTORY   OF   THE   SUPREME   COURT 

son  had  married  into  the  Livingston  family,14  and  during  the 
decades  of  his  career  as  a  politician  in  New  York,  he  had 
represented  the  Livingston  family's  interests  and  aims.  Thus 
we  see  that  from  the  time  of  the  organization  of  the  Supreme 
Court  of  the  United  States,  the  Livingston  family  had  four 
direct  or  related  representatives  on  that  bench,  in  the  persons 
of  John  Jay,  William  Paterson,  Brockholst  Livingston  and 
Smith  Thompson.  It  was  virtually  a  succession  of  the  Liv- 
ingston dynasty. 

Marshall  Legalizes  the  Slave  Traffic. 

By  this  time,  the  question  of  negro,  or  chattel,  slavery  was 
assuming  acute  proportions.  A  case  came  up  before  the  Su- 
preme Court  of  the  United  States,  in  1825,  which  gave  that 
court  the  opportunity  to  pronounce  slavery  a  legal  institution. 
This  was  the  case  of  the  Antelope,  the  facts  of  which  were: 

A  privateer,  called  the  Columbia,  sailing  under  a  Vene- 
zuelan commission,  had  entered  the  port  of  Baltimore  in  1819. 
There,  its  captain  had  clandestinely  taken  on  a  crew  of  thirty 
or  forty  men.  The  officers  and  most  of  the  crew  were  United 
States  citizens.  Proceeding  to  sea,  the  captain  hoisted  the 
Artegan  flag,  and  renamed  the  ship,  the  Arraganta. 

The  ship,  fully  armed,  then  went  to  the  coast  of  Africa  to 
prey  upon  slavers.  Off  the  coast  of  Africa,  the  Arraganta 
captured  an  American  vessel,  the  Antelope  from  Bristol, 
Rhode  Island,  from  which  ship  twenty-five  negroes  were 
taken.  The  Arraganta  also  captured  several  Portuguese  ves- 
sels, and  a  Spanish  ship,  all  filled  with  negroes  torn  from 
Africa.  The  Arraganta  and  the  Antelope  then  sailed  together 
to  the  coast  of  Brazil.  There  the  Arraganta  was  wrecked, 
and  her  captain  and  most  of  the  crew  were  made  prisoners. 
The  remainder  of  the  crew,  together  with  the  guns  and  other 
armament  of  the  Arraganta,  were  transferred  to  the  Antelope. 

14  See,  Alexander's  "  A  Political  History  of  the  State  of  New  York." 
Vol.  I:  155. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  297 

Captain  John  Smith  then  renamed  the  Antelope  the  General 
Ramirez.  In  the  hold  of  this  vessel  were  all  of  the  negroes 
that  had  been  captured  by  the  privateer,  the  Arraganta. 

Smith's  object  was  to  sneak  into  some  port  and  sell  the 
slaves.  But  while  the  slaver  was  hovering  near  the  southern 
coast  of  the  United  States,  she  was  sighted  by  the  U.  S.  rev- 
enue cutter  Dallas,  captured,  and  taken  to  the  port  of  Savan- 
nah for  adjudication.  At  the  time  of  her  capture,  about  two 
hundred  and  eighty  slaves  were  found  on  board ;  at  least  a 
third  more  had  died  from  the  cruelties  of  the  voyage. 

When  the  ship  arrived  at  Savannah,  four  different  claimants 
came  forward.  Both  the  Portuguese  and  the  Spanish  Vice- 
Consuls  claimed  the  ownership  of  the  negroes.  Captain  John 
Smith  also  put  in  his  claim  as  having  captured  them  jure 
belli.  The  fourth  claimant  was  the  United  States  Govern- 
ment, which  demanded  that  they  be  surrendered  because  of 
their  having  been  transported  from  Africa  in  violation  of  the 
laws  of  the  United  States.  The  Government  maintained  that 
they  were  entitled  to  their  freedom  by  the  laws  of  nations. 

The  lower  court  dismissed  Smith's  claim ;  as  a  matter  of 
fact,  Smith  was  only  acting  for  an  American  capitalist,  en- 
gaged in  the  slave  trade,  who  did  not  dare  avow  himself.  The 
claim  of  the  Government  was  also  dismissed,  except  as  to  that 
portion  of  the  negroes  which  had  been  originally  taken  from 
the  Antelope.  The  remainder  of  the  negroes  were  divided 
between  the  Spanish  and  Portuguese  claimants.  This  was  the 
state  of  the  case  when  it  came  up  on  appeal  before  the  Su- 
preme Court  of  the  United  States. 

The  Doctrine  of  Acquiescence  Again  Applied. 

Chief  Justice  Marshall  began  his  decision  with  his  usual 
concession  of  regard  for  public  sentiment  and  proprieties. 
The  slave  trade,  he  said,  was  abhorrent.  That,  he  went  on, 
"  it  is  contrary  to  law  of  nature  will  scarcely  be  denied.  That 
every  man  has  a  natural  right  to  the  fruits  of  his  own  labor 


298  HISTORY   Or    THE    SUPREME    COURT 

is  generally  admitted ;  and  that  no  other  person  can  rightfully 
deprive  him  of  those  fruits,  seems  to  be  the  necessary  results 
of  this  admission. 

"  But,"  he  went  on,  with  a  sudden  and  incongruous  line  of 
reasoning,  "  from  the  earliest  times  war  has  existed,  and  war 
confers  rights  in  which  all  have  acquiesced."  The  query  can 
here  be  interjected:  To  what  war  did  Marshall  refer?  The 
primitive  negro  tribes  of  Africa  were  not  warring  on  any  na- 
tion ;  even  the  most  distorted  imagination  could  not  conceive 
the  idea  of  an  aboriginal  people  armed  with  clubs  making 
war  on  nations  equipped  with  battleships  and  other  modern 
implements.  What  actually  was  happening  was  the  invasion 
of  Africa  by  gangs  of  heavily-armed  desperate  whites,  in  the 
hire  of  capitalist  slave  traders,  forcibly  tearing  away  helpless 
negroes  to  sell  them  as  slaves,  if,  perchance,  they  survived 
the  brutal  rigors  of  the  long  voyage  to  the  slave  marts. 

Mr.  Key,  counsel  for  the  Government  in  this  case,  had 
pointed  out  in  his  argument, ."  Slaves  are  no  longer  acquired 
merely  by  capture  in  war,  or  by  trade ;  but  free  persons  are 
seized  and  carried  off  by  their  traders  and  their  agents.  Wars 
are  instigated  by  them  for  the  mere  purpose  of  making  slaves. 
The  persons  enslaved  are  clandestinely  brought  away,  under 
circumstances  of  extreme  cruelty,  aggravated  by  the  neces- 
sity of  concealment,  and  smuggled  into  every  country  where 
the  cupidity  of  avarice  creates  a  demand  for  these  unhappy 
victims.  .  .  ." 15  Loaded  down  with  chains,  badly  fed, 
huddled  together  on  the  slave  ships,  many  of  them  swept 
away  by  disease  or  cruelty  or  change  of  climate  —  this  was 
the  fate  of  tens  of  thousands  of  negroes,  snatched  from  their 
native  land.  And  this  is  what  Marshall  accepted  as  "  war  " ! 

Here,  too,  we  see  Marshall  justifying  the  horrors  of  the 
slave  trade  with  that  identical  doctrine  of  acquiescence  that 
he  had  advocated,  as  an  attorney,  thirty-eight  years  previously, 

15  Wheaton's   Reports,   Supreme   Court  of   the   United   States,   Vol. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  299 

in  pleading  for  the  validation  of  the  Fairfax  estate,  admit- 
tedly obtained  and  held  by  fraud.  "  Among  the  most  en- 
lightened nations  of  antiquity,"  his  Antelope  decision  read  on, 
referring  to  the  rights  of  victors,  "  one  of  these  was,  that  the 
victor  might  enslave  the  vanquished.  This,  which  was  the 
usage  of  all,  could  not  be  pronounced  repugnant  to  the  law  of 
nations,  which  is  certainly  to  be  tried  by  the  test  of  general 
usage.  That  which  has  received  the  assent  of  all,  must  be 
the  law  of  all." 

The  trifling  circumstance  that  the  enslavement  of  captives 
had  never  received  the  assent  of  the  captives  themselves,  was, 
of  course,  ignored  by  the  eminent  Chief  Justice  Marshall. 
According  to  this  doctrine,  the  assent  of  those  who  found 
slavery  profitable  became  the  assent  of  all,  and  therefore  took 
position  as  a  law  of  general  usage.  Whatever  benefited  the 
ruling  class  became,  ipso  facto,  a  settled  principle  of  acquies- 
cence. One  of  the  fine  theories  of  law  was  that  anything  ex- 
torted under  duress  was  illegal  and  invalid.  But  Chief  Jus- 
tice Marshall  saw  no  duress  in  the  ravaging,  kidnapping  and 
enslavement  of  a  race  helpless  against  the  wiles  and  guns  of 
white  slave  traders  enriching  themselves  in  a  harvest  of 
blood,  death  and  agony.  In  Chief  Justice  Marshall's  exalted 
mind,  this  became  "  acquiescence." 

"  Slavery,  then,"  Marshall  continued,  "  has  its  origin  in 
force ;  but  as  the  world  has  agreed  that  it  is  a  legitimate  result 
of  force,  the  state  of  things  which  is  thus  produced  by  general 
consent,  cannot  be  pronounced  unlawful."  1(i 

After  reverting  to  the  usage  of  the  ruling  classes  of  more 
savage  ages  for  precedents,  Marshall,  knowing  that  these 
grounds  would  be  fiercely  attacked,  proceeded  ingeniously  to 
qualify  himself. 

Although,  he  went  on,  the  old  harsh  law  of  war  had  been 
exploded,  and  war  was  no  longer  to  be  considered  as  giving 
a  right  to  enslave  captives,  yet  "  Africa  has  not  yet  adopted 

18  Ibid.,  120-121, 


300  HISTORY   OF   THE   SUPREME   COURT 

these  principles."  So  far  as  the  test  of  international  law 
went,  "  it  is  decidedly  in  favor  of  the  legality  of  the  trade." 
For  nearly  two  centuries  the  slave  traffic,  he  concluded,  had 
been  carried  on  without  opposition  and  without  censure.  This 
was  a  glaring  falsehood;  nearly  all  the  European  nations  had 
begun  to  outlaw  the  traffic  as  piracy,  and  Congress  itself 
had  passed  laws  aimed  at  the  slave  traffic.17  It  was  to  cir- 
cumvent those  very  laws  that  the  slave  traders  placed  their  final 
expectations  in  the  Supreme  Court  of  the  United  States.  "  A 
jurist,"  Marshall  ended,  "  could  not  say  that  a  practice  thus 
supported  was  illegal,  and  that  those  engaged  in  it  might  be 
punished,  either  personally  or  by  deprivation  of  property."  18 

The  widening  economic  conflict  between  the  capitalists  of 
the  different  sections  over  slavery,  was  exactly  reflected  in 
the  Supreme  Court  of  the  United  States.  In  Massachusetts 
and  Rhode  Island  where  cheap,  so-called  free  white  labor  was 
used,  the  owners  of  the  mills,  profiting  richly,  were  definitely 
committed  to  that  system,  and  more  and  more  were  aligning 
themselves  against  the  expensive,  archaic  chattel  slavery  sys- 
tem. 

By  1830,  according  to  official  statistics  reproduced  in 
Davenport's  Gazetteer  for  the  year  1833,  there  was  not  a 
single  slave  in  Maine,  New  Hampshire,  Vermont  and  Massa- 
chusetts, and  very  few  in  other  Northern  States.  But  of  the 
entire  number  of  2,010,436  slaves  in  the  United  States  in 
1830,  Virginia  had  the  greatest  proportion  of  any  State;  it 
held  469,724  slaves  within  its  borders. 

The  State  of  Virginia,  in  fact,  was  a  negro-raising  region 
for  other  States.  In  his  "  Rise  and  Fall  of  the  Slave  Power 
in  America,"  Wilson  relates  that  the  breeding  of  slaves  in  Vir- 
ginia for  the  domestic  slave  traffic  became  so  enormous  that  in 

17  The  slave  trade  was  prohibited  to   American  citizens  by  acts   of 
Congress   of    1794,    1800  and   March   3,    1819.     Each   act   increased  the 
penalties,  finally  prescribing  capital  punishment  for  violation  and  con- 
viction. 

18  X  Wheaton,  122.     Marshall  reversed  part  of  the  lower  court's  de- 
cision and  affirmed  other  portions. 


FURTHER   COURSE  OF   COURT   UNDER    MARSHALL  3OI 

1836  it  was  estimated  that  the  number  sold  from  the  single 
State  of  Virginia  was  40,000,  yielding  a  return  of  $24,000,000. 
Thus  we  clearly  see  Marshall's  decisions  exactly  representing 
the  economic  interests  of  his  State  and  section.  He,  himself, 
as  we  have  seen,  was  a  slave  owner;  he  had  his  agricultural 
estates,  and  he  owned  a  large  residence  which  he  had  built, 
surrounded  by  spacious  grounds,  on  Shockhoe  Hill,  in  Rich- 
mond. On  the  other  hand,  Story's  attitude  toward  negro  slav- 
ery was  generally  consonant  with  that  of  his  native  State  of 
Massachusetts,  where  there  were  no  negro  slaves,  but  certain 
of  the  shipowners  of  which  profited  from  the  African  slave 
trade. 

Negro  slavery,  not  being  profitable,  had  passed  into  dis- 
use in  the  North,  although  the  traffic  in  ravishing  Africa  of 
negroes  was  extensively  carried  on  by  Northern  shipowners, 
and  up  to  the  very  outbreak  of  the  Civil  War,  considerable 
New  England,  New  York  and  Philadelphia  capital  was  in- 
vested in  the  business  of  slave  procuring.  A  system  allow- 
ing the  unrestricted  exploitation  of  white  men,  women  and 
children  for  fourteen  hours  every  working  day  in  the  mills, 
and  paying  from  $1.75  to  $2.00  a  week  to  women,  and  less 
to  children,  presented  its  superior  advantages  over  the  chattel 
slavery  system.  That  many  of  the  workers  were  swept  to  a 
premature  death  by  disease  contracted  in  the  factories,  or  in 
foul  habitations,  or  by  accidents  while  plying  their  trade,  en- 
tailed no  economic  loss  to  the  mill  owners.  Unlike  negro 
slaves,  they  were  not  merchandise  or  property;  they  did  not 
have  to  be  fed  or  cared  for ;  no  financial  loss  to  the  employer 
was  caused  by  their  sickness  or  death ;  they  could  easily  be  re- 
placed, so  lorfg  as  there  was  a  surplus  of  labor. 

This  the  South,  being  an  agricultural  country,  filled  with 
anachronistic  views  of  past  ages,  and  mostly  provincial  in 
character,  neither  understood  nor  saw,  although  as  far  back 
as  the  eighteenth  century  there  were  a  few  like  Robert  Carter, 
of  Virginia,  who  clearly  perceived  that  the  negro  slave  system 


3<D2  HISTORY   OF   THE    SUPREME    COURT 

could  not  compete  in  efficiency  or  inexpensiveness  with  white 
labor.  Added  to  the  views  growing  out  of  the  economic  in- 
terests of  the  Northern  capitalists,  was  a  sincere  agitation 
for  the  restriction  of  slavery  or  the  emancipation  of  the 
slave.  This  movement  had  no  concern  with  factory  interests 
or  profits,  but  was  moral  in  its  nature.  Its  advocates  were 
impelled  by  an  humanitarian  spirit,  and  were  indomitable  in 
preaching  it,  often  coming  into  collision  with  an  inimical  dis- 
play of  mob  passion. 

The  "Plattsburg"  Case. 

Associate  Justice  Story  faithfully  represented  the  views  and 
interests  of  men  of  capital  of  his  section.  On  all  other  is- 
sues, affecting  questions  of  property,  he  and  Marshall  co- 
hered; he  (as  he  admitted)  docilely  accepted  Marshall's  lead, 
and  Marshall's  construction,  not  of  what  law  was,  but  of  what 
the  law  should  be.  On  the  issue  of  slavery,  however,  they 
differed,  Story  pronouncing  himself  opposed  to  negro  slavery. 

In  the  case  of  the  Plattsburg,  Justice  Story  had  his  oppor- 
tunity to  express  himself.  At  least,  we  take  his  decision  on 
its  face  value,  although  the  Supreme  Court  had  a  way  of 
continuously  playing  politician,  and  after  handing  out  a  noted 
decision  bound  to  serve  as  a  leading  precedent,  would  seek 
to  allay  strong  criticism  in  various  quarters  by  rendering  a 
radically  different  decision  in  another,  and  less-important, 
case.  Not  one  of  the  members  of  the  Supreme  Court  had 
been  other  than  a  chronic  politician ;  when  placed  on  that  high 
bench  most  of  them  were  well  along  in  years,  and  irreclaim- 
ably  addicted  to  politics,  by  nature  and  choice. as  well  as  by 
interest.  » 

The  Plattsburg  was  an  American  vessel,  registered  at  Balti- 
more. That  city,  it  may  be  remarked,  was  one  of  the  most 
active  of  slave  traders'  centers;  capitalists  of  great  standing 
and  large  and  varied  interests  were  concerned  in  the  traffic; 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  303 

and  their  chief  attorney,  before  the  Supreme  Court  of  the 
United  States,  at  this  time,  was,  as  we  shall  see,  none  other 
than  Roger  B.  Taney,  Marshall's  successor  as  Chief  Justice.19 
The  Plattsburg,  in  1819,  cleared  the  port  of  Baltimore  os- 
tensibly for  St.  Thomas,  West  Indies.  But  she  dropped  an- 
chor down  the  Chesapeake  Bay,  "  and  afterwards  (if  the 
witnesses  are  to  be  believed),  some  grape,  cannister  and  round 
shot  were  taken  on  board,  and,  on  stowing  them  away,  a  bar- 
rel of  irons,  or  handcuffs,  was  discovered,  which  was  not 
contained  in  the  manifest  of  the  cargo."  20  The  Plattsburg 
then  went  to  St.  Jago  de  Cuba,  where  she  discharged  a  cargo 
that  had  been  taken  aboard  at  Baltimore  for  the  sole  purpose 
of  lulling  suspicions.  From  St.  Jago  de  Cuba  she  sailed 
straight  for  Africa,  to  engage  in  the  slave  trade. 

Justice  Story  Denounces  Slavery  But  — 

Caught  red-handed,  the  Plattsburg,  after  capture,  was  con- 
demned at  the  port  of  New  York.  That  condemnation  Jus- 
tice Story  affirmed.  "  This,"  he  said  (thereby  directly  con- 
tradicting Marshall's  assertions  in  the  Antelope  decision, 
rendered  in  the  same  year),  "is  not  the  case  of  an  ordinary 
trade,  where  no  disguise  is  necessary  or  useful.  It  is  the 
case  of  a  trade  prohibited  to  American  citizens  under  very 
heavy  penalties,  penalties  which  have  since  been  aggravated 
to  the  infliction  of  capital  punishment.  It  is  a  trade  odious 
in  our  country,  and  carries  a  permanent  stain  upon  the  repu- 
tation of  all  who  are  concerned  in  it,  and  is  watched  by  the 
severest  vigilance  of  the  Government.  If  carried  on  at  all, 
it  must,  therefore,  be  carried  on  by  Americans,  under  the 
disguise  of  foreign  flags ;  and,  it  is  notorious,  that  in  the 
colonial  ports  of  Spain  there  is  little  difficulty  in  procuring  all 
of  the  apparatus  for  the  use  of  the  national  flag.  .  .  ." 2l 

19  See  details  in  Chapter  IX. 

20  X  Wheaton,  137. 

21  Ibid.,  142-143. 


304  HISTORY  OF  THE   SUPREME   COURT 

This  decision  read  exceedingly  fair,  yet  the  question 
merely  concerned  that  of  condemnation  of  ship  property,  and 
not  the  punishment  of  the  capitalist  promoters.  When,  only 
shortly  after  this,  one  of  the  richest  and  most  notorious  slave- 
traders  of  Baltimore  had  been  indicted,  it  was  Story  that, 
upon  Roger  B.  Taney's  plea,  set  aside  the  indictment  as 
"  fatally  defective  "  on  technical  grounds.22 

Spoliation  of  the  National  Domain. 


The  struggle  of  the  slave  power  to  maintain  its  institutions 
was  accompanied  by  a  corresponding  great  effort  of  South- 
ern plantation  owners  and  politicians,  allied  with  Northern 
capitalists,  to  seize  for  their  private  ownership  immense  areas 
of  land,  both  in  the  original  territory  of  the  United  States, 
and  in  the  vast  regions  acquired  by  the  purchase  of  Louisiana 
and  the  cession  of  Florida.  Side  by  side  with  this  appropria- 
tion, was  a  like  movement  on  the  part  of  Northern  capitalists 
to  get  hold  of  the  richest  and  most  valuable  areas  of  public 
lands  in  the  North,  West  and  Northwest. 

Single  individuals,  or  corporate  companies  of  powerful 
personages,  obtained  tens  of  millions  of  acres  of  public  do- 
main. This  was  done  in  either  one  or  both  of  two  ways. 
One  method  was  to  get  huge  tracts  of  land  by  corrupting  the 
land  officials  to  sell  them  for  a  trifling  sum;  in  these  great 
frauds  nearly  every  politician  of  note  was  involved,  either 
directly  or  indirectly,  some  pecuniarily,  others  as  attorneys, 

22  See,  Chapter  IX.  These  two  decisions  —  those  of  Marshall  and 
Story  —  practically  extended  the  fullest  license  and  immunity  to  the 
slave  traders.  Wilson  tells  in  his  "  Rise  and  Fall  of  the  Slave  Power 
in  America "  that  the  time  came  when  there  were  at  least  100,000 
negroes  who  had  been  snatched  from  Africa  and  sold  in  the  United 
States  and  that  they  were  held  in  bondage  despite  the  plain  laws  on  the 
subject  forbidding  the  importation  of  negro  slaves.  The  traffic  in 
slave  trading  was  large  and  continuous,  and  the  profits  were  so  enor- 
mous that  the  slave  traders  looked  with  complacency  upon  the  loss 
of  part  of  their  human  cargo.  It  was  cheaper  to  herd  the  negroes  in 
foul  quarters  on  the  ships  and  lose  some  of  them  than  to  go  to  the 
expense  of  providing  adequate  room,  shelter  and  food. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  305 

and  still  others  as  compliant  instruments.  The  second  method 
was  to  present  private  land  claims,  covering  enormous 
stretches  of  land,  alleged  to  have  been  granted  by  French, 
British  or  Spanish  governors. 

That  many  of  these  proved  thefts  were  successful  was  due 
largely  to  decisions  of  the  Supreme  Court  of  the  United 
States.  These  decisions,  in  turn,  served  as  commanding 
precedents  in  later  justifying  similar  private  claim  defraud- 
ing from  the  Government  of  more  than  20,000,000  acres  of 
the  most  valuable  lands  in  California,  New  Mexico,  Colorado 
and  other  portions  of  the  territory  conquered  from  Mexico. 

Another  prefatory  significant  fact  may  be  mentioned  in  this 
place:  Just  as  the  first  Justices  of  the  Supreme  Court  of 
the  United  States  represented  the  combined  old  and  newer 
landed  interests,  so  it  will  be  seen  presently  that  the  compo- 
sition of  the  Supreme  Court  changed  so  as  consistently  to 
reflect  the  interests  of  the  three  dominant,  aggressive  sections 
of  the  capitalist  class  fighting  at  this  time  either  to  retain  old 
conditions  or  to  establish  in  law  the  objects  of  their  struggle. 
These  three  sections  were : 

1.  The    triumphant    slave-owning    aristocracy,    keeping    its 
hold  on  Government  until  the  Civil  War. 

2.  The  owners  of  chartered   State  banks,  opposed  to  the 
monopoly  of  Government  deposits  held  by  the  Bank  of  the 
United  States.     They  came  into  power  with  Jackson's  election. 

3.  The    private    land    claim    speculators    and    monopolists 
bending  every  effort  to  have  the  courts  validate  their  wresting 
of  such  vast  areas  of  public  land.     Closely  associated  with  this 
section  was  another  section  —  the  individuals  or  corporations 
securing  immense  tracts  of  public  lands  by  fraudulent  legisla- 
tion or  by  outright  fraud. 

A  Recital  of  Some  Land  Frauds. 

With  this  general  prelude,  we  shall  now  proceed  to  narrate 
the  facts  as  to  the  private  land  claims.  So  profuse,  however, 


306  HISTORY   OF   THE   SUPREME   COURT 

are  the  facts  that  it  will  be  necessary  to  present  them  in  as 
compendious,  yet  withal,  as  comprehensive,  a  form  as  is  pos- 
sible with  so  prolific  a  fund  of  material.  Such  an  exposition 
is  necessary  to  an  understanding  of  some  extraordinary  deci- 
sions rendered  by  the  Supreme  Court  under  Marshall  and  his 
successors. 

The  Louisiana  Purchase  in  1805  added  the  huge  area  of 
750,000,000  acres  to  the  national  domain;  in  this  acquisition 
was  included  the  entire  surface  of  the  present  States  of  Lou- 
isiana, Arkansas,  Missouri,  Iowa,  Nebraska,  and  Oregon,  all 
of  Minnesota  west  of  the  Missouri  River,  all  of  Kansas  ex- 
cept a  small  corner,  all  of  the  Dakotas,  Montana,  Idaho,  Wash- 
ington, Indian  Territory,  and  those  portions  of  Alabama  and 
Mississippi  south  of  the  thirty-first  parallel.  The  cession  of 
Florida,  by  Spain,  in  1819,  augmented  the  extent  of  the  public 
domain  by  38,000,000  acres. 

The  population  of  the  United  States,  in  1800,  was  5,319,762. 
In  1810,  it  stood  at  7,230,903,  and  ten  years  later  was  nearly 
10,000,000.  Compared  to  the  enormous  extent  of  public  do- 
main, this  was  an  extremely  small  population. 

But  much  of  the  accessible  area  in  the  East  had  already 
been  acquired  by  men  and  methods  described  in  previous  chap- 
ters. A  certain  number  of  emigrants  had  drifted  to  the  West, 
but  by  far  the  greatest  portion  were  compelled  to  remain  and 
congest  in  the  East.23  While  allowing  capitalists  to  get  hold 
of  millions  of  acres,  the  laws  placed  the  greatest  obstacles  in 
the  way  of  the  poor. 

Until  the  year  1800,  public  lands  could  not  be  bought  in 
tracts  of  less  than  about  five  thousand  acres.  A  bill  author- 
izing the  sale  of  public  lands  in  alternate  half  and*quarter  sec- 
tions was  defeated  in  the  Senate,  but  a  compromise  finally 

23  A  report  of  a  select  committee  of  the  House  of  Representatives, 
February  25,  1829,  said  that  the  "  population  of  part  of  the  eastern 
section  of  our  country  has  nearly  reached  its  highest  point;  its  surplus 
is  filling  up  New  York  and  tends  strongly  toward  the  West."  "  Ameri- 
can State  Papers :  Public  Lands,"  Vol.  VII,  Doc.  No.  747. 


FURTHER    COURSE    OF   COURT    UNDER    MARSHALL  307 

agreed  upon  permitted  the  sale  in  whole  and  half  sections. 
This  concession  was  of  little  effect.  Gallatin,  Secretary  of 
the  Treasury,  reported  to  Joseph  Nicholson,  Chairman  of  the 
House  Committee  on  Public  Lands,  on  January  2,  1804,  that 
poor  individuals  could  not  purchase  less  than  360  acres ;  that 
in  order  to  become  freeholders,  they  had  to  pay  $160,  and  be- 
come bound  for  $480  more,  payable  in  four  years.  If  they 
had  no  other  resources,  it  was  impossible  for  them  to  draw 
means  of  payment  from  the  produce  of  the  land.24  Wages 
were  so  low,  and  money  so  scarce,  that  for  the  average  wage 
laborer  to  raise  a  few  hundred  dollars  was  an  almost  insuper- 
able task.  If  he  borrowed  it,  he  had  to  pay  usurious  interest. 

On  the  other  hand,  politicians  and  capitalists  were  able  to 
get  unlimited  areas  of  land,  either  by  outright  legislative  or 
Congressional  gift,  or  by  fraudulent  purchase  at  auction  "  on 
credit"  from  the  Government.  Having  secured  great  areas 
of  valuable  land,  the  acquiring  capitalists  held  such  parts  of 
it  as  contained  mineral  deposits,  timber  and  other  resources, 
and  formed  corporations  to  exploit  their  largess.  Other  parts 
adapted  to  agriculture  were  either  turned  into  great  farming 
estates,  or  were  sold  in  small  tracts,  to  actual  settlers,  at 
exorbitant  rates.  A  Senate  Committee,  on  February  9,  1812, 
estimated  that  not  less  than  30,000,000  acres  of  uncultivated 
land  in  the  States  and  Territories  west  of  the  Alleghany 
Mountains  were  held  by  individuals.25 

It  was  pointed  out  in  a  report  at  the  time  that  the  policy 
of  selling  the  public  lands  to  the  highest  bidder  resulted  in 
this  inequality:  That  the  intending  settler  had  to  consider 
how  much  his  labor  would  yield  him,  while  the  speculator  had 
only  to  calculate  the  profits  arising  from  the  labor  of  others. 
A  petition  to  Congress,  in  1814,  that  every  person  above  the 

24  Doc.  No.  91,  Eighth  Congress,  First  Session. 

25  "  American  State  Papers :  Public  Lands,"  Vol.  II :  441.    The  report 
does  not  state  the  number  of  individuals.     But  that  a  great  part  of 
this  vast  area  was  held  for  speculative  purposes  is  distinctly  set  forth 
in  the  report. 


308  HISTORY   OF    THE    SUPREME    COURT 

age  of  eighteen  years  be  allowed  to  hold  160  acres  of  public 
lands,  by  virtue  of  settlement,  at  the  price  of  twelve  and  a  half 
cents  an  acre,  payable  in  seven  years,  without  interest,  was 
rejected,  on  the  ground  that  its  adoption  would  be  offering 
"  a  bounty  to  intemperance  and  imprudence." 2G  Congress 
was  rilled  with  land  speculators,  or  their  obtrusive  attorneys 
and  lobbyists.  Denying  the  right  of  land  to  the  poor,  Con- 
gress passed  law  after  law  making  it  easier  for  capitalist  land 
speculators  to  buy  enormous  tracts.  By  September  30,  1822, 
"  credit  purchasers,"  mostly  comprising  those  non-resident 
speculators,  owed  the  Government  a  total  of  nearly  $10,550,- 
ooo.27  Petitions  to  Congress  to  pass  a  law  for  the  selling  of 
the  public  lands  at  fifty  cents  an  acre  were  unavailing.28 

With  the  acquisition  of  Louisiana  and  Florida  fraud  was 
extended  to  a  stupendous  degree. 

The  old  settlement  laws  of  Great  Britain,  Spain  and  France 
prescribed  various  restrictions  in  the  granting  of  land.  The 
code  of  laws  applying  to  all  of  the  ultramarine  provinces  of 
the  Spanish  Empire  gave  to  settlers  a  quantity  of  lands  ac- 
cording to  their  station,  the  gentleman's  portion  being  at  least 
five  times  the  peasant's,  and  the  compliance  of  certain  condi- 
tions of  settlement  and  cultivation  was  demanded.20  Even 
when  large  grants  were  made  by  corrupt  governors,  the  car- 
rying out  of  certain  specific  conditions  of  settlement  was 
called  for.  The  old  French  grants  in  what  is  now  Michigan 
contained  twenty  distinct  and  specific  conditions ;  if  they  were 
not  fulfilled,  forfeiture  was  declared.  Among  other  provi- 
sions, timber  and  mines  did  not  pass  with  the  grant.  If  the 
grantee  sold  brandy  to  the  Indians,  his  grant  was  confiscated. 
The  Government  held  the  prior  right  of  buying  his  land. 
Each  of  these  and  other  conditions  were  inscribed  in  the  con- 


2.6  "  American  State  Papers :  Public  Lands,"  Vol.  II : 

27  Executive  Reports,  First  Session,  Eighteenth  Congress,  1824,  Re- 
port No.  61. 

28  U.  S.  Senate  Docs.,  1824-25,  No.  25,  etc. 

29  See,  Book  IV,  Chapter  XII,  Collection  of  the  Laws  of  the  Indies. 


FURTHER    COURSE   OF   COURT   UNDER    MARSHALL  309 

tract  or  grant.30     The  British  laws,  as  we  have  seen,  strictly 
limited  the  area  in  a  grant  of  land  to  any  one  individual. 

The  Forging  and  Antedating  of  Land  Grants. 

As  early  as  1803,  it  seems,  the  industry  of  forging  and  ante- 
dating land  grants  was  briskly  begun  in  Louisiana.  No 
doubt,  this  would  not  have  been  done  with  such  assurance 
and  on  so  great  a  scale  had  not  the  state  of  affairs  in  the 
United  States  warranted  the  belief,  or  at  least  the  hope,  that 
there  were  good  chances  of  ultimately  securing  the  validation 
of  those  spurious  grants.  Under  the  Republic  of  the  United 
States,  virtually  no  restrictions  were  placed  upon  the  individ- 
ual acquisition  of  large  bodies  of  land ;  the  capitalist  could 
have  his  own  way ;  and  with  Congress,  the  executive  depart- 
ments and  the  courts  long  composed  of  men  largely  them- 
selves interested  in  land  transactions,  fair  opportunities  were 
presented  of  consummating  the  fraudulent  schemes.  It 
would  take  some  time  but  it  could  be  done. 

A  communication  dated  September  8,  1803,  from  a  Gov- 
ernment officer,  in  Mississippi  Territory,  to  Gallatin,  gave 
warning  of  what  was  going  on.  Describing  the  prevalent 
practices  in  the  newly-acquired  Territory  of  Louisiana,  the 
writer  went  on :  "  I  have  no  doubt  of  the  correctness  of  my 
information  that  a  vast  number  of  adventurers,  many  of  them 
from  this  territory,  are  daily  making  extensive  surveys,  on  the 
west  side  of  the  Mississippi ;  and  Spanish  officers  have  lately 
set  up  claims  to,  and  are  now  disposing  of,  large  tracts,  some 
even  of  sixty  miles  square,  at  reduced  prices;  in  some  in- 
stances, not  more  than  ten  cents  per  acre. 

"  It  seems  that  the  respectable  citizens  of  this  territory, 
who  have  spurned  the  nefarious  offer,  have  been  invited  to  a 
participation  in  the  harvest  of  iniquity;  the  inviters  alleging 
that  land  of  the  first  quality  might  be  obtained  for  a  few  cents 

30  See,  "American  State  Papers:  Public  Lands,"  Vol.  I:  282.  (Doc. 
No.  126.) 


3io 


HISTORY   OF    THE    SUPREME    COURT 


an  acre;  and  respecting  titles,  as  good  as  may  be  had  (say 
they)  are  those  by  which  lands  are  held  on  this  side  of  the 
river. 

"  A  knowledge  of  former  transactions  in  this  territory,  dur- 
ing the  interval  between  the  treaty  of  1795,  and  evacuation  by 
the  Spanish  Government,  will  lead  one  to  an  easy  solution  of 
the  mystery  by  which  this  peculation  will  be  veiled.  The  war- 
rant of  survey,  the  surveyor's  certificate,  and  the  final  grant, 
will  bear  concurrent  date,  prior  to  the  cession  of  Louisiana  to 
France. 

"  I  am  told  that  in  most,  if  not  all,  cases,  these  surveyors 
are  Spanish  subjects,  and  their  assistants  and  chain  carriers 
Spanish  soldiers,  who  will  probably  move  off  with  the  Span- 
ish Government.  I  therefore  apprehend  that  for  any  tribunal 
hereafter  to  discriminate  between  the  just  and  the  fraudulent 
claim  will  be  difficult,  even  if  oral  testimony  be  admitted ;  but 
if,  to  its  exclusion,  the  Spanish  record  be  paramount  evidence, 
impossible."  31 

Another  correspondent,  in  a  letter  dated  September  29, 
1803,  written  from  New  Orleans  to  Gallatin,  wrote  as  re- 
garded the  territory  then  called  West  Florida  (forming  the 
gulf  lands  in  what  are  now  parts  of  Alabama  and  Mississippi), 
that  "  the  intendant  here,  probably  foreseeing  the  cession,  has 
opened  a  sale,  within  these  few  days,  for  the  uninhabited 
lands  in  that  province;  and  orders  of  survey  have,  I  believe, 
been  already  *ssued  for  three  or  four  hundred  thousand 
acres."  The  writer  went  on  fo  say :  "  No  individual  thinks 
of  purchasing  less  than  forty  to  fifty  thousand  acres,  the  value 
of  which  may  be  estimated  from  twelve  to  twenty-five  cents 
an  acre,  to  be  paid  by  different  installments.  I  presume  that, 
within  ten  days  from  this  time,  orders  of  survey  will  be  is- 
sued for  every  acre  of  vacant  land  in  West  Florida.  .  .  ." 32 

31 "  American    State    Papers :    Public   Lands,"   Vol.    1 :    188.     (House 
Doc.  No.  94,  Eighth  Congress,  First  Session.) 
32  Ibid.,  188-189. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  311 

Land  Grants  to  Corpses. 

A  third  communication,  dated  October  18,  1803,  from  a 
United  States  officer  at  Kaskaskia,33  Louisiana  Territory,  to 
Gallatin,  read : 

"  You  have  no  guess  how  the  United  States  are  imposed 
upon  by  the  Spanish  officers  since  they  have  heard  of  the 
cession  of  Louisiana.  Grants  are  daily  making  for  large 
tracts  of  land  and  dated  back ;  sorne  to  men  who  have  been 
dead  fifteen  or  twenty  years,  and  transferred  down  to  the 
present  holders.  These  grants  are  made  to  Americans,  with 
a  reserve  of  interest  to  the  officer  who  makes  them ;  within 
fifteen  days  the  following  places  have  been  granted,  to- wit: 
forty-five  acres  choice  of  the  lead  mines,  sixty  miles  from 
this,  heretofore  reserved  to  the  Crown  of  Spain ;  the  iron  mine 
on  Wine  Creek,  with  ten  thousand  acres  around  it,  about 
eighty  miles  from  this  place,  and  formerly  reserved  to  the 
Crown  of  Spain ;  sixty  thousand  acres,  the  common  touching 
St.  Louis,  heretofore  given  by  the  Crown  of  Spain  to  the  in- 
habitants of  the  village  (though  of  doubtful  value),  and  fif- 
teen thousand  acres  adjoining;  and  many  other  grants  of  ten, 
fifteen,  twenty  and  thirty  thousand  acres  have  been  made.  I 
could  name  persons  as  well  as  places."  3* 

These  and  other  communications,  together  with  a  complaint 
of  the  United  States  Board  of  Commissioners  (appointed 
to  provide  for  the  disposal  of  lands  south  of  Tennessee),  that 
the  poor,  actual  settler  had  great  difficulty  in  getting  land, 
were  sent  by  Gallatin  to  Congress.  The  Board  of  Commis- 
sioners stated  that  so  many  fraudulent  claims  to  large  areas 
of  land  in  former  Spanish  territories  were  to  be  filed,  that 
if  testimony  in  opposition  to  "  those  false  and  fraudulent 

33  This  town,  one  hundred  and  fifty  years  ago,  was  the  largest  town 
west  of  the  Alleghanies.     To-day  a  single  smokehouse  is  all  that  re- 
mains of  the  old  French  town,  and  it  is  expected  that  even  the  smoke- 
house   will    have    disappeared   beneath    the    waters    of    the    Mississippi 
River,  which  has  swallowed  up  the  rest  of  the  town. 

34  "  American  State  Papers :  Public  Lands,"  Vol.  1 :  189. 


312  HISTORY   OF   THE   SUPREME   COURT 

claims  "  were  not  made,  little  land  would  be  left  to  the  United 
States.  "  The  suggestions  of  the  commissioners,"  Gallatin 
wrote  to  Congress  at  the  same  time,  "  on  the  subject  of  fraud- 
ulent and  antedated  Spanish  grants,  seem  to  deserve  particular 
consideration.  It  is  ascertained,  by  information  received 
through  various  and  authentic  channels,  that  the  same  frauds 
are  attempted  on  a  much  larger  scale  in  Louisiana.  .  .  ." : 

A  little  more  than  a  month  later,  on  February  29,  1804, 
President  Jefferson  sent  a  message  to  Congress,  enclosing  a 
communication  from  Amos  Stoddard,  Captain  of  the  U.  S. 
Corps  of  Artillerists,  at  Kaskaskia.  Stoddard  wrote  that 
approximately  200,000  acres  of  valuable  land,  including  all 
of  the  best  mines,  had  been  surveyed  to  various  individuals 
in  the  course  of  a  few  weeks  and  that  the  grants  had  been 
antedated  in  the  name  of  the  former  Spanish  Lieutenant 
Governor.  "  It  is  understood,"  wrote  Stoddard,  "  that  each 
purchaser  gives  forty  dollars  for  every  one  hundred  or  four 
hundred  acres,  and  that  this  sum  is  divided  between  three 
persons,  the  projectors  of  the  speculation."  38 

In  view  of  these  disclosures,  comprising  a  very  few  of  the 
many  made  at  the  precise  time  when  the  frauds  were  initi- 
ated, the  position  generally  taken  later  in  its  decisions  by  the 
Supreme  Court  of  the  United  States,  was  remarkably  sig- 
nificant. This  position  was  that  when  an  order  of  survey 
was  made,  the  lands  covered  by  it  were,  by  that  very  fact,  de- 
tached from  the  mass  of  public  lands,  and  converted  into  a 
vested  private  right. 

Forgery  on  an  Immense  Scale. 

A  large  variety  of  four  species  of  alleged  grants  now 
turned  up  in  Kaskaskia.  One  kind  of  grant  was  founded  on 
alleged  ancient  grants  from  various  Governments,  or  alleged 
land  purchases  from  the  Indians.  A  second  were  alleged 

35  "  American  State  Papers :   Public  Lands,"  Vol.  1 :  189. 

36  Ibid.,  193-194.     (Doc.  No.  99.) 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  313 

grants  of  donations  of  four  hundred  acres  to  each  head  of  a 
family  settling  in  the  country  east  of  the  Mississippi  River  at 
or  after  the  time  of  the  treaty  of  1783  with  England.  A 
third  sort  were  grants  by  courts  or  military  commandants  for 
improving  and  cultivating  land,  and  a  fourth  kind  were  grants 
for  service  in  the  United  States  militia. 

The  extent  to  which  fraud  was  carried  in  the  case  of  all  of 
these  alleged  grants  was  appalling.  "  To  our  astonishment," 
reported  the  U.  S.  Commissioners  from  Kaskaskia,  December 
I,  1807,  to  Gallatin,  "  we  find  more  than  seven  hundred  depo- 
sitions given  there  [in  Upper  Louisiana,  now  the  State  of 
Missouri]  to  be  forgeries;  most  of  these  depositions  have 
been  given  in  by  persons  assuming  the  names  of  certain  an- 
cient and  respectable  settlers  in  this  country ;  by  calling  them 
forward  (for  most  of  them  still  reside  in  Upper  Louisiana) 
we  have  discovered  the  truth,  but  a  truth  most  embarrassing 
to  us;  we  have  been  obliged  to  reject  nearly  forty  claims  to 
four  hundred  acres  each,  which  we  had  confirmed  to  one  man 
on  this  evidence,  and  caused  to  be  recorded  by  our  clerk  as 
ultimately  decided ;  our  records  are  everywhere  to  be  altered. 
Besides,  more  than  two  hundred  depositions  have  been  given 
in  before  this  Board  by  persons  who  have  since  acknowledged 
their  falsity ;  they  found  themselves  entrapped.  .  .  ." 3T 
The  Board  said  that  it  had  been  imposed  upon  unavoidably, 
and  that  only  by  a  slow  and  cautious  comparison  of  facts,  from 
time  to  time,  had  it  learned  the  truth. 

Official  Collusion. 

The  ringleaders  in  these  frauds  were  those  notorious  land 
speculators  and  sharps,  John  Edgar,  J.  R.  Jones,  Robert  Reyn- 
olds, and  Robert  and  William  Morrison.  Allied  with  them 
was  a  group  of  powerful  politicians. 

In  a  detailed  report,  in  1810,  the  U.  S.  Commissioners  at 

87  Ibid.,  590. 


314  HISTORY   OF    THE    SUPREME    COURT 

Kaskaskia,  revealed  that  Governor  St.  Clair,  of  the  North- 
west Territory,  had  been  in  collusion  with  Edgar  as  early 
as  1790.  In  that  year  St.  Clair  had  lodged  with  Edgar.  St. 
Clair  had  confirmed  to  Edgar  an  immense  number  of  claims; 
in  one  list  alone,  apart  from  many  other  claims,  St.  Clair  had 
confirmed  to  Edgar  a  block  of  forty-four  claims.38  Claim 
No.  2208,  nominally  covering  13,986  acres  of  land,  but  really 
stretched  to  30,000  acres,  had  been  confirmed  by  Governor 
St.  Clair  to  John  Edgar  and  to  the  governor's  own  son,  John 
Murray  St.  Clair.39  This  claim  was  predicated  upon  an  al- 
leged grant  by  Colonel  Wilkins,  British  Commandant  of  the 
Illinois  Country. 

"  The  truth  seems  to  be,"  reported  the  Commissioners,  "  that 
Edgar,  previous  to  the  issuing  of  the  patent  (which  has  never 
been,  as  usual,  countersigned  by  the  Secretary)  employed  a 
certain  Daniel  McCann,  then  surveyor  under  the  Governor's 
appointment  (and  who  from  his  own  letter  on  our  files,  we 
pronounce  not  to  have  been  more  honest  than  he  ought  to 
be),  to  survey  this  tract.  Knowing,  as  it  seems,  the  quantity 
of  land  meant  here  to  be  confirmed,  he  ran  his  lines  to  a  cer- 
tain distance  and  stopped;  Edgar  urged  him  to  proceed  fur- 
ther ;  he  refused ;  Edgar  then  employed  a  certain  Richard 
Lord,  whose  name  is  notorious  on  our  records,  to  complete 
the  survey;  and  said  McCann  was,  it  seems,  afterwards  in- 
duced to  certify  it."  40 

The  St.  Clairs  allowed  no  opportunity  to  escape  them. 

Claim  No.  2055  a'one  comprised  ninety  donation  rights,  of 
400  acres  each,  to  heads  of  families,  or  36,000  acres,  con- 
firmed to  Edgar  by  Governor  St.  Clair.  Claim  No.  2209,  for 
a  league  square,  had  been  patented  by  Governor  St.  Clair  to 
John  Edgar  and  St.  Clair's  son,  Arthur  St.  Clair;  the  title 
was  supposed  to  be  an  ancient  French  concession,  but  whether 
it  was  ever  actually  thus  made  was  doubtful.41  These  are  a 

38  "  American  State  Papers :  Public  Lands,"  Vol.  II :  235-237. 

39  Ibid.,  204.  40  Ibid.  « Ibid.,  203. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL 

few  of  the  many  claims,  aggregating  hundreds  of  thousands  of 
acres,  held  by  Edgar  in  collusion  with  various  members  of  the 
St.  Clair  family. 

Professional  Perjurers  Used. 

These  land  jobbers  had  at  their  disposal  a  paid  band  of 
desperadoes  and  perjurers. 

In  the  case  of  many  of  Edgar's  claims,  Augustus  Langlois 
testified  as  to  improvements  made  in  1784-1785,  yet  the  Com- 
mission reported  that  Langlois  must  have  been  only  eight  or 
ten  years  old  at  that  time,  and  lived  in  a  distant  part  of  the 
country:  Langlois  perjured  himself  in  twenty  different  cases.42 
John  Harris  likewise  had  perjured  himself  in  many  successive 
cases  for  the  benefit  of  the  Edgar  syndicate  in  claims  con- 
firmed by  Governors  St.  Clair  and  William  Henry  Harrison. 
Another  noted  perjurer,  Johnson  Amberson,  who  had  sworn 
falsely  in  thirty-three  cases,  was  described  by  the  Commission 
as  a  "  poor,  wandering  wretch,  equally  destitute  of  morality 
or  character,"  who  had  died  "in  a  drunken  fit."  He  had 
been  willing  "  to  testify,  on  moderate  terms,  for  any  man 
who  would  pay  him  for  it,  and  before  anybody  who  would 
take  his  testimony.  .  .  ." 43  John  Cook,  a  "  Dutchman," 
had  committed  perjury  in  fifteen  land-claim  cases;  he  had  tes- 
tified to  happenings  in  certain  years,  when  as  a  matter  of  fact 
he  had  not  left  Europe  at  the  time.  "  We  further  remark," 
reported  the  Commission,  "  that  many  of  these  depositions 
have  been  written  by  John  Edgar  and  other  claimants  of  Kas- 
kaskia,  and  sent  up  to  said  Cook  at  St.  Charles,  where  they 
have  been  signed  and  attested  by  him,  without  the  least  alter- 
ation." " 

Of  Nicholas  Revelle,  the  Commission  reported  that  although 
he  had  not  been  in  America  long,  "  yet  he  has  given  a  great 
number  of  depositions  at  St.  Lours,  and  at  St.  Charles,  La., 

123.  *3Ibid.  "Ibid.,  126. 


316  HISTORY   OF    THE    SUPREME    COURT 

exclusively  in  favor  of  large  landholders,  commencing  as 
early  as  1783-84."  45  Jean  B.  Montrieulle  gave  fifty  deposi- 
tions in  favor  of  the  principal  land  speculators;  he  acknowl- 
edged perjury  in  a  large  number  of  cases.  Joseph  Page  was 
thus  described :  "  This  man  is  a  Frenchman,  and  has  been 
a  great  swearer;  we  have,  perhaps,  two  hundred  of  his  depo- 
sitions, generally  given  in  favor  of  the  large  land'  job- 
bers. .  .  ."  Page  had  perjured  himself  in  forty-three 
cases,  and  Daniel  Thorn  in  seventeen.46  Simon  Toiton,  clerk  of 
the  Roman  Catholic  parish  Prairie  du  Chien,  probably  moved 
to  confession  by  the  desire  for  religious  absolution,  came  be- 
fore the  Board  and  freely  admitted  having  given  two  hundred 
perjured  depositions  in  favor  of  Edgar,  Williams  and  Robert 
Morrison  and  others.47  And  so  the  long  list  of  perjuries  ran 
on  at  length. 

The  Commissioners  Escape  Assassination. 

"  In  a  considerable  portion  of  the  cases,"  the  Commission- 
ers reported,  "  where  claims  have  been  supported  by  perjured 
testimony,  we  have  been  presented  with  forged  deeds,  con- 
veying the  claims  thus  supported.  They  amount  to  a  very 
great  number."  The  conclusion  of  the  Commissioners'  re- 
port shows  the  dangers  of  assassination  to  which  honest 
officials  were  exposed.  "  We  close  this  melancholy  picture 
of  human  depravity,  by  rendering  our  devout  acknowledg- 
ments that,  in  the  awful  alternative  in  which  we  have  been 
placed,  of  either  admitting  perjured  testimony  in  support 
of  the  claims,  or  having  it  turned  against  our  character  and 
lives,  it  has,  as  yet,  pleased  the  Divine  Providence  which  rules 

45  "  American  State  Papers :  Public  Lands,"  Vol.  II :  203. 

46  Ibid.,  123-126. 

47  While  Edgar  and  the  Morrisons  were  thus  manufacturing  evidence 
in  wholesale,  they  were  petitioning  Congress  to  allow  the  introduction 
of  slaves  into  Illinois.     They  cotild  not,  they  complained,  hire  a  laborer 
for  less  than  a  dollar  a  day,  exclusive  of  washing,  lodging  and  board- 
ing.   Their  petition  was  rejected  by  Congress. —  Ibid.,  Vol.  I:  68. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  317 

over  the  affairs  of  men,  to  preserve  us  both  from  legal  murder 
and  private  assassination."  48 

A  graphic  picture  this  report  gives  of  the  widespread  frauds 
and  the  perils  faced  by  sincere  investigators. 

Reporting,  December  17,  1811,  to  the  House  of  Representa- 
tives on  this  document,  Representative  Morrow,  Chairman  of 
the  Committee  on  Public  Lands,  stated  that  the  evidence  was 
conclusive  that  claims  for  improvement  had  been  confirmed, 
where  there  were  no  improvements ;  that  alleged  ancient 
grants  had  been  confirmed,  although  there  appeared  to  be  no 
title  made  out  to  the  claimant  confirmed,  which  defect,  in  some 
instances,  had  been  supplied  by  forged  conveyances;  that  the 
Spanish  officers  from  whom  the  grants  were  alleged  to  have 
emanated  not  only  had  no  competent  authority  to  make  them, 
but  were  expressly  prohibited  from  exercising  such  powers ; 
and  that  the  military  bounty  certificates,  given  to  the  militia 
serving  in  the  Indian  wars  had  not  only  been  bought  up  by  a 
few  individuals,  but  the  number  turned  in  far  exceeded  the 
number  of  soldiers  entitled  to  them.49  Nevertheless,  skillful 
lobbying  gradually  did  its  work  in  successive  Congresses  com- 
posed considerably  of  men  interested  in  land-grabbing,  with  the 
result  that  great  numbers  of  fraudulent  land  claims  were  con- 
firmed. 

Spurious  Claims  in  Louisiana. 

In  southern  Louisiana,  similar  frauds  were  in  process. 
The  rings  of  land  grabbers  had  their  extensive  ramifications 
in  Congress  and  in  the  executive  departments  at  Washington, 
and  without  difficulty  secured  the  passage  of  two  laws  allow- 
ing land  claimants  peculiarly  favorable  conditions  under 
which  to  submit  claims.  It  is  not  possible  within  the  scope 
of  this  work  to  present  all  of  the  facts  embraced  in  the  long 
report,  made  on  December  30,  1815,  by  the  Register  and  the 

**Ibid.,  126-127.  ™lbid.,  Vol.  II:  257-258. 


HISTORY   OF   THE    SUPREME   COURT 

Receiver  of  the  Land  Office,  at  Opelousas.  By  way  of  illus- 
tration, a  few  facts  will  be  given. 

Claimants  swore  that  they  had  cultivated  plantations  and 
were  heads  of  families  when,  in  fact,  they  were  only  boys  at 
the  time.  Many  claims  were  presented  based  on  claims  either 
counterfeited  or  fraudulently  obtained.  Of  certain  docu- 
ments of  title  presented  for  confirmation,  the  Commission  said 
that  "  it  is  remarkable  that  although  some  of  them  differ  as 
much  as  six  years  in  their  dates,  it  is  evident  from  the  size 
and  texture  of  the  paper  that  every  sheet  must  have  been 
taken  from  the  same  quire.  It  is,  moreover,  very  evident  that 
attempts  have  been  made  to  give  these  papers  an  old  appear- 
ance." 50 

As  to  claims  founded  upon  requetes  approved  and  sanc- 
tioned by  Spanish  authority,  the  Commissioners  reported  that 
at  first  they  were  favorably  impressed  towards  them  "  but,  in 
the  progress  of  investigation,  it  appeared  to  them  singularly 
remarkable  that  so  many  claimants  holding  requetes  should 
have  delayed  to  make  their  entries  until  the  passage  of  the 
last  two  laws  granting  indulgence  to  claimants.  .  .  .  The 
Register  and  Receiver,  therefore,  consider  it  a  duty  to  rec- 
ommend the  adoption  of  some  measures  calculated  to  investi- 
gate this  description  of  title  more  scrupulously  than  they  have 
the  power  of  doing.  It  should  be  noticed  that  no  means  have 
been  afforded  them  of  obtaining  evidence  against  claims." 

Title  papers,  the  Commissioners  further  reported,  had 
been  kept  out  of  view  for  the  purpose  of  claiming  a  larger 
quantity  of  land  than  had  been  conceded  by  the  Spanish  Gov- 
ernment. The  Commission  incorporated  in  its  report  a  letter 
written  by  Judge  J.  S.  Johnston  in  which  thje  Commission  was 
informed  that  at  Cattahoula,  while  Judge  Johnston  was  hold- 
ing court,  "  a  recent  and  shocking  murder  there  has  opened 
a  scene  of  fraud  and  perjury  of  considerable  extent,  of  which 
it  is  proper  you  should  be  apprised."  Judge  Johnston  said 

60 "  American  State  Papers:  Public  Lands,"  Vol.  Ill:  250. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  319 

that  there  existed  at  that  place  a  regular  clique  for  the  com- 
mission of  great  land  frauds,  and  that  in  a  dispute  over  the 
spoils,  a  man  named  Mecom  had  been  killed  and  the  murderer 
and  his  accomplice  had  escaped.51 

The  Indians  Defrauded. 

By  worrying  the  Indians  with  the  representation  that  the 
United  States  Government  intended  to  take  away  their  lands, 
speculators  obtained  an  enormous  area  from  the  Appalache 
tribe  on  the  promise  of  payment  of  $3,000.  Neither  this  sum 
nor  any  part  of  it  was  paid. 

Describing  this  transaction  in  detail  in  a  letter,  dated  Jan- 
uary 20,  1814,  to  Levin  Wales,  Register  of  the  Land  Office 
at  Opelousas,  Dr.  John  Sibley,  U.  S.  Agent  of  Indian  Affairs, 
at  Nachitoches,  added: 

"  I  do  know  that  in  proving  claims  before  your  Board,  you 
have  been  most  egregiously  imposed  upon,  and  those  who  have 
imposed  on  you  have  boasted  of  their  acuteness.  Indeed, 
there  has  been  so  much  false  swearing  to  obtain  your  certifi- 
cates, that  it  is  doubtful  whether  truth  or  falsehood  would 
preponderate  were  an  estimate  of  both  made."  Sibley  added 
this  illuminating  comment :  "  I  have  determined  to  attempt 
to  have  some  persons  indicted  for  the  false  testimony  given 
before  you,  but  it  has  been  so  common,  and  within  the  knowl- 
edge of  every  grand- juryman,  and  many  of  them  would  not 
have  to  search  beyond  themselves  for  an  instance,  that  I  do 
not  believe  any  grand  jury  in  this  part  of  the  country  could 
be  found  who  would  present  a  person  for  having  proved  a 
claim  before  your  Board,  however  false  it  might  appear."  52 

Sibley  was  innocent  of  the  knowledge  that  Levin  Wales 
himself  was  interested  with  the  very  same  men  whom  Sibley 
sought  to  have  indicted,  in  a  fraudulent  purchase  of  the  same 

"  Ibid. 

52  Ibid.,  249. 


32O  HISTORY  OF   THE   SUPREME   COURT 

character  on  Bayou  Bceuf.53  Levin  Wales  was,  in  fact,  an  old 
hand  at  participating  in  land  frauds.54  His  denunciations  of 
land  frauds  in  Louisiana,  while  true  enough,  doubtless  were 
made  either  with  the  view  of  giving  himself  an  appearance  of 
zeal,  or  of  seeking  to  get  hold  of  certain  land,  fraudulently 
obtained  by  others,  for  himself  and  his  associates. 

The  Influence  of  the  Frauds  on  the  Supreme  Court. 

These  details,  tedious  as  they  may  appear,  are  vital  to  a 
clear  understanding  of  the  movements  and  public  life  of  the 
period,  and  of  a  correct  appreciation  of  subsequent  decisions 
of  the  Supreme  Court  of  the  United  States.  They  were  condi- 
tions soon  leading  to  the  time  when  scarcely  any  man  could 
get  appointed  to  the  Supreme  Court  unless  he  was  viewed 
with  favor  by  the  newer  land  interests  or  their  attorneys,  con- 
trolling, as  they  did,  the  important  committees  of  Congress, 
and  having  the  President's  ear. 

Some  of  the  foremost  political  leaders  of  both  political 
parties,  such  as  Senator  Benton,  Senator  Judah  P.  Benja- 
min, Daniel  Webster  and  others  were  attorneys  for  great 
fraudulent  land  claims,  and  some  of  the  foremost  capitalists 
were  concerned  in  the  claims  to  vast  areas  of  land  in  Louisiana 
and  Florida. 

For  example,  Stephen  Girard,  a  potent  factor  in  the  Bank 
of  the  United  States,  and  the  richest  man  at  one  time  in  the 
United  States,  was,  together  with  Edward  Livingston,  Rob- 
ert R.  Goelet  and  other  capitalists,  one  of  the  claimants  of 
the  great  Bastrop  claim,  covering  twelve  leagues  square  in 

53  It  was  one  of  many  other  such  claims  confirmed  by  Congress  three 
years  later.     (See,  Ibid.,  276-277.)     Miller  and  Fulton  were  the  princi- 
pals  in   both   the   Red    River   and   the   Bayou    Boeuf   Indian    swindles. 
They  claimed  that  the  Appalache  tribe  owed  them  $2,600  for  merchan- 
dise.    This  the  Appalache  chiefs  denied,  saying  that  the  debt  was  owed 
by  the  Conchatte  tribe,  who  were  occupying  the  Appalache  lands  by 
courtesy.    The  Bayou  Boeuf  claim  was  also  founded  on  alleged  debts 
for  merchandise. 

54  See,  "  American  State  Papers :  Public  Lands,"  Vol.  1 :  150. 


FURTHER   COURSE  OF   COURT   UNDER    MARSHALL  321 

Louisiana,  purporting  to  have  been  given  by  the  Governor  of 
Louisiana  in  1796  or  I797-55  The  Boisdore  claim  was  another 
of  the  many  private  grant  claims ;  alleged  to  have  been  given 
by  Governor-General  Miro,  in  1783,  for  the  purpose  of  a 
cow  pasture,  its  claimants  contended  that  it  comprised  from 
100,000  to  400,000  acres  60 —  quite  a  sizable  pasture  for  cattle 
to  roam  in. 

Great  Forged  Grants  in  Florida. 

The  cession  of  Florida  was  accompanied  by  as  glaring 
frauds  as  those  in  Louisiana.  Anterior  to  describing  the 
great  case  of  Mitchell  et  al.  vs.  the  United  States  decided  by 
Marshall,  in  1835,  a  relation  of  these  and  other  facts  is  neces- 
sary. 

Negotiations  for  the  cession  of  Florida  to  the  United  States 
were  begun  in  1816.  Immediately,  as  had  been  the  case  in 
Louisiana,  there  was  the  greatest  activity  in  turning  out 
forged  or  otherwise  fraudulent  grants,  in  anticipation  of  the 
transfer  of  the  territory  to  the  United  States.  General  E. 
K.  Call,  Assistant  United  States  Attorney  General,  who  later 
was  delegated  by  the  Government  to  contest  alleged  private 
land  claims,  described  this  period  in  his  argument  in  the 
case  of  the  United  States  vs.  George  J.  F.  Clarke :  "  The 
court,  will  find,"  he  said,  "  by  an  examination  of  the  transcript 
from  the  archives  of  East  Florida,  that  there  was  nearly  ten 
times  the  quantity  of  land  granted  in  the  year  1817,  and  from 
that  time  until  the  year  1821,  than  had  been  granted  pre- 
viously during  the  whole  period  of  the  occupation  of  that 
province  by  Spain,  commencing  in  the  year  1783.  .  .  ."  r>7 

Many  protracted  and  nauseating  scandals  developed  from 
the  efforts  to  have  the  great  number  of  extensive  private  land 

55  The  history  and  final,  confirmation  of  this  grant  by  Congress,  in 
1854,  is  related  in  the  chapters  on  Chief  Justice  Taney. 

50  See  later. 

57  Peters'  Reports,  Supreme  Court  of  the  United  States,  Vol.  VIII : 
Appendix,  721. 


322  HISTORY   OF   THE   SUPREME   COURT 

claims  confirmed.  Alexander  Hamilton,  one  of  the  three 
members  of  the  Board  of  Land  Commissioners  for  East 
Florida,  resigned  in  disgust  in  1824.  He  accused  Floyd,  one 
of  the  other  members  of  the  Commission,  of  having  been  em- 
ployed as  counsel  in  land  cases  the  titles  of  which  were  officially 
under  consideration  by  the  Commission.58  This  charge  Floyd 
denied. 

Hamilton  also  charged  Floyd  and  Blair,  the  majority  mem- 
bers, with  having  recommended  fraudulent  grants  for  confirma- 
tion. He  informed  Crawford,  Secretary  of  the  Treasury,  that 
Floyd  and  Blair  had  kept  the  records  in  an  illegal  and  improper 
manner ;  that  they  refused  to  examine  original  papers  and  rec- 
ords ;  that  they  kept  on  confirming  grants  notwithstanding  the 
fact  that  a  fraudulent  erasure  had  been  made  in  an  important 
document;  and  that  Floyd  and  Blair,  in  defiance  of  the  clear 
laws,  decided  that  the  Spanish  governors  had  been  vested 
with  unlimited  powers  to  grant  lands.59  The  Spanish  laws, 
in, fact,  limited  land  grants  to  fifty  acres  to  each  head  of  a 
family,  and  twenty-five  acres  for  each  child  or  slave  above 
the  age  of  sixteen  years,  and  fifteen  acres  for  each  child  or 
slave  between  the  ages  of  eight  and  sixteen  years. 

Spurious  Grants  and  Fraudulent  Surveys. 

Hamilton  estimated  that  the  fraudulent  claims  in  East  Flor- 
ida alone  covered  tracts  aggregating  fully  1,500,000  acres, 
and  that  they  had  actually  been  surveyed  to  double  that  ex- 
tent.60 The  surveyor  responsible  for  this  was  the  notori- 
ous George  J.  F.  Clarke,  surveyor-general  under  the  Spanish 
government.  Clarke's  frauds  are  numerously  described  in 
the  Government  documents.  Large  numbers  of  fraudulent 
claims  were  confirmed  by  the  Board,  although  the  original 
grants  had  never  been  produced,  nor  were  they  to  be  found 

58  "  American  State  Papers :  Public  Lands,"  Vol.  IV :  759. 
09  Ibid.,  Vol.  Ill :  766. 
id.,  768. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  323 

in  the  office  of  the  keeper  of  public  archives.  Of  the  validity 
of  these  grants,  there  was  no  proof  whatever  except  the  cer- 
tificate of  Thomas  de  Aguilar,  late  Secretary  of  the  Spanish 
Government  in  Florida.  "  It  is  my  opinion,"  wrote  Ham- 
ilton, "  that  Congress  will  not  sanction  many  of  the  claims 
recommended  for  confirmation,  but  will  consider  them  as 
fraudulently  made  in  anticipation  of  the  cession  of  the  Flor- 
idas  to  the  United  States." 

Writing  to  Crawford,  Secretary  of  the  Treasury,  from  St. 
Augustine,  January  24,  1824,  Hamilton  stated  that  one  of  the 
reasons  why  he  opposed  the  majority  of  Commissioners  was 
"  because  I  considered  the  public  interests  essentially  jeopar- 
dized by  the  admission  of  claims  that  in  my  opinion,  had  been 
made  in  fraud  of  the  United  States,  and  in  direct  violations 
of  the  provisions  of  the  royal  order  of  1815,  in  virtue  of  which 
they  were  avoivedly  made!' 61 

Regarding  the  claims  of  John  H.  Mclntosh,  Hamilton 
wrote,  May  24,  1824,  to  Christopher  Rankin,  Chairman  of 
the  House  Committee  on  Public  Lands,  that  he  had  tried  to 
give  the  most  liberal  construction  to  the  most  legitimate  powers 
of  the  former  Governors,  and  to  sustain,  if  possible,  the  pre- 
tensions of  the  claimants.  He  added  : 

"  //  the  objection  to  confirm  the  grants  had  arisen  from 
mere  irregularities,  and  they  had  been  made  within  any  rea- 
sonable conformity  to  the  authorities  in  virtue  of  which  they 
were  aiwvedly  issued,  I  should,  unquestionably,  have  yielded, 
if  not  acquiesced,  in  the  decisions  of  the  majority;  but  when 
it  was  evident  that  the  grossest  and  most  extravagant  frauds 
were  attempted  to  be  imposed  upon  the  United  States  in  an- 
ticipation of  the  cession  of  the  Floridas  to  its  sovereignty,  I 
felt  imperiously  bound  to  investigate  all  those  grants  involved 
within  this  character,  and  all  such  as,  from  their  extravagance, 
would  bear  the  least  suspicion  of  forgery."  °2 

«i  Ibid.,  Vol.  Ill :  770. 

62  Ibid.,  867.     (Doc.  No.  413.)     The  italics  are  in  the  original. 


324  HISTORY   OF   THE    SUPREME    COURT 

These  grave  charges  were  supplemented  by  particulars. 

Hamilton  further  said  that  "  there  are  strong  suspicions 
that  when  the  floodgates  of  prodigality  were  opened,  the 
frauds  were  not  confined  to  a  violation  of  the  ordinary  au- 
thority, but  extended  to  the  charge  of  forgery  in  antedating, 
etc."  The  minutes  of  the  Commission,  he  pointed  out,  proved 
that  under  Spanish  power  previous  to  the  year  1814,  there 
existed  a  systematic  rule  in  the  distribution  of  the  public 
lands,  and  that  the  grants  made  inconsistent  with  those  re- 
strictions had  been  issued  subsequent  to  the  year  1814,  with 
the  exception  of  perhaps  five  said  to  have  been  issued  by 
White,  Governor  of  Florida,  from  1796  to  1811.  The  old 
Governors,  Hamilton  urged,  possessed  no  plenary  power  to 
dispose  of  the  public  lands.  White,  said  Hamilton,  bore  an 
excellent  reputation  for  integrity ;  therefore  the  grants  said 
to  have  been  made  by  him  should  be  investigated  carefully. 
"  It  has  also  been  proved  by  the  documents  herewith  annexed," 
Hamilton  continued,  "  that  if  Congress  were  not  attempted  to 
be  imposed  upon,  they  have  at  least  been  kept  ignorant  of 
the  knowledge  of  the  existence  of  public  papers  essentially 
necessary  to  a  proper  understanding  of  the  subject  in  which 
the  interests  of  the  United  States  are  involved  to  a  value 
amounting  to  millions  of  dollars."  °3 

This  was  Hamilton's  version  of  the  issue.  On  his  part, 
Davis  Floyd,  writing  March  6,  1826,  to  Richard  Rush,  Sec- 
retary of  the  Treasury,  protested  against  the  criticism  of  the 
Board.  The  business  of  investigating  and  exposing  frauds 
and  forgeries,  he  wrote,  "  would  not  be  popular  with  persons 
interested ;  and  that  those  who  were  the  means  of  detecting 
and  exposing  such  nefarious  transactions  would  thereby  make 
themselves  enemies,  will  readily  be  admitted,  and  was  rea- 
sonably expected ;  that  there  are  cases  of  a  doubtful  and  sus- 
picious character,  and  which  have  been  held  back  by  the 
claimants  in  the  hope  that  the  business  might  fall  into  more 

63 "American  State  Papers:  Public  Lands,"  Vol.  Ill:  873. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  325 

favorable  hands,  is  confidently  believed;  and  hence  a  solicitude 
for  a  change  was  calculated  on.  .  .  ."  °* 

There  was  one  significant  fact,  however,  which  none  of  the 
Commissioners  could  deny.  In  a  public  advertisement,  Wil- 
liam Reynolds,  Keeper  of  the  Public  Archives,  offered  a  re- 
ward of  $100  for  information  leading  to  the  conviction  of 
the  person  who,  on  or  about  November  27,  1823,  clandestinely 
placed  in  Reynolds'  office  a  document  purporting  to  be  a 
memorial  and  Spanish  concession  for  a  grant  of  16,000  acres 
of  land,  and  at  the  same  time  stole  another  document  for  a 
few  hundred  acres,  substituting  the  one  for  the  other.05 

Considering  what  was  going  on  in  Congress  and  in  the 
executive  department  at  that  very  time,  Hamilton  must  have 
expressed  himself  in  an  ironical  sense. 

The  policy  of  the  land  jobbers  was  first  to  get  Congress  to 
confirm  small  claims  exciting  no  public  attention.  With  these 
cases  as  precedents,  huge  claims  would  later  be  rushed  through 
in  the  closing  hours  of  the  sessions.  These  tactics  were  com- 
mented upon  by  Senator  Hunter,  of  the  Committee  on  Public 
Lands,  in  his  report  to  March  14,  1820,  ".  .  .  .  In  land 
cases  of  small  amounts,"  he  said,  "  it  had  been  habitual,  and 
perhaps  excusable,  for  the  Committees  to  lend  a  favorable  ear 
to  claimants.  At  the  worst,  it  was  a  donation  of  a  few  acres  of 
an  unbounded  region ;  a  handful  from  a  heap.  But  experience 
teaches  that  these  decisions  in  minor  cases  are  soon  cited  as 
precedents,  and  are  made  to  include  principles  dangerously 
vague  and  indefinite,  and  are  clamorously  invoked  in  aid  of 
subsequent  cases  of  suspicious  .aspect  and  enormous  magni- 
tude." 

This,  it  may  be  said,  was  equally  true  of  the  Supreme  Court 
of  the  United  States.  Doubtless,  it  was  with  the  knowledge 

64  Ibid.,  Vol.  IV :  758.  Both  aspects  of  this  controversy  are  given 
here.  Hamilton's  exposures  were,  however,  supported  by  later  Govern- 
ment investigations  which  showed  that  he  really  underestimated  the 
extent  of  the  frauds. 

es  Ibid.,  Vol.  Ill :  765.     (Doc,  No.  412.) 


326  HISTORY   OF   THE   SUPREME   COURT 

that  land  jobbers  or  their  lobbyists  overflowed  Congress,  that 
Floyd  wrote  to  Rush  that  when  the  Board  recommended  a 
claim  as  valid,  "  the  distinguished  liberality  of  Congress  "  was 
depended  upon  to  propel  it  to  final  confirmation. 

The  Enormous  Land  Grants  Claimed. 

The  assurance  and  audacity  of  the  claimants  to  vast  tracts 
of  land  in  Florida  were  matchless.  Without  having  the 
slightest  proof,  except  certificates  from  the  notorious  Aguilar, 
they  persistently  pushed  their  claims. 

The  heirs  of  J.  M.  Arredondo  claimed  40,000  acres,  as  hav- 
ing been  granted  by  Governor  White,  in  1811;  they  could 
produce  no  original  grant,  nor  was  any  paper  found  in  the 
archives ;  they  had  nothing  but  a  certificate  from  Aguilar. 
The  same  was  the  case  with  the  heirs  of  F.  M.  Arredondo, 
claiming  about  306,000  acres  of  land,  under  alleged  grants 
by  Governor  White,  in  1809,  and  30,000  acres  under  alleged 
grants  made  in  1817.  George  J.  F.  Clarke  turned  up  with 
claims  for  22,000  acres  of  land  with  nothing  but  a  certificate 
from  Aguilar  to  prove  his  claims.  Pedro  Miranda  presented 
a  claim  for  368,640  acres,  alleged  to  have  been  granted  by 
White  in  1810;  this  was  denounced  as  a  forgery.  Although 
he  could  show  no  original  grants,  Michael  Lozerns,  with  noth- 
ing more  than  Aguilar's  certificate,  lay  claim  to  43,000  acres 
as  having  been  granted  by  Governor  Coppinger,  in  1817. 

These  were  a  few  of  the  grants  claimed  as  having  been 
given  on  the  score  of  "  services  to  the  Spanish  Government." 
Only  two  claims  on  the  whole  list  were  backed  by  the  produc- 
tion of  the  original  grants.66 

Some  sixty-five  thousand  acres  (one  of  the  claims  being 
for  50,000  acres)  were  claimed  as  having  been  granted  by 
White  for  cultivation  and  improvement,  yet  there  was  no 

66  See,  Attorney-General  Call's  exhaustive  report,  "  American  State 
Papers :  Public  Lands,"  Vol.  VIII :  250.  (Doc.  No.  1348.) 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  327 

proof  of  either  habitation  or  cultivation.67  Claims  were  put 
forward  for  an  aggregate  of  312,000  acres  alleged  to  have 
been  granted  in  return  for  the  building  of  sawmills,  "  yet  the 
archives  of  the  country  furnished  no  precedent  for  the  con- 
firmation of  one  of  them."  Although  these  mill  grants  (if 
genuine),  Call  reported  further,  conveyed  only  the  right  to 
build  sawmills  on  some  stream  and  use  the  pine  trees  on 
the  adjacent  land  five  miles  square,  yet  "  most  of  these  grants 
have  been  surveyed  in  four  or  five  different  tracts,  many  of 
them  more  than  one  hundred  miles  distant  from  each  other, 
covering  the  best  land  to  be  found,  instead  of  the  pine  forests 
designated  in  the  grant.  .  .  ." 68 

A  Commission,  appointed  by  Crawford,  in  1824,  to  inves- 
tigate land  titles  in  West  Florida,  reported  that  the  records 
had  been  removed  from  the  country  in  violation  of  the  sol- 
emn stipulation  of  the  treaty;  that,  among  other  claims,  the 
papers  in  the  claim  of  Fernando  Yerra,  for  25,600  arpents 
of  land  69  were  forged,  as  also  in  the  claim  of  Magarita  Go- 
quet  for  10,000  arpents,  and  in  Francisca  Zurima's  claim  to 
5,670  arpents.  Giving  their  specific  reasons  for  believing  the 
papers  to  be  forged,  the  Commission  observed :  "  It  is  in 
grants  of  the  greatest  magnitude,  and  whose  titles  are  made 
out  with  unusual  exactness,  that  apprehensions  of  fraud  are 
to  be  most  seriously  entertained.  The  poor  and  limited  claim- 
ant is  very  rarely  found  guilty  of  this  crime.  .  .  ." 70 

The  "  Innocent  Purchaser." 

In  the  prosecution  of  many  of  these  claims  for  confirma- 
tion, a  noticeable  feature  remarked  was  the  suspiciously  large 
number  of  cases  in  which  the  claims  had  been  transferred  three 

67  Ibid. 

68  Ibid.,  253. 

69  The  common  arpent  contained  40,000  feet,  approximately  the  same 
a*  an  English  acre. 

J0"  American  State  Papers:  Public  Lands,"  Vol.  IV:  158. 


328  HISTORY   OF    THE    SUPREME    COURT 

or  four  times  from  one  holder  to  another,  the  conveyances 
passing  within  a  brief  period. 

Of  these  assignments,  there  was  a  multitude  throughout 
the  Louisiana  Purchase  and  in  Florida.  In  his  extended  and 
searching  analysis  of  the  private  land  claims  71  Judge  Peck, 
of  the  United  States  District  Court  at  St.  Louis,  wrote  that 
these  assignments  had  been  prohibited  by  the  Spanish  law. 

"  The  assignments,"  he  said,  "  were  forbidden ;  they  were 
a  violation  of  the  intention  of  the  concession.  Their  fre- 
quency at  the  close  of  the  Spanish  government,  furnished  evi- 
dences of  fraud;  so  many  of  them  being  made  to  the  same 
individuals,  is  strong  evidence  of  fraud.  The  same  assignees 
having  also  large  concessions  to  themselves  of  which  they  had 
not  taken  possession,  and  which  in  many  instances  appear  to 
have  been  obtained,  with  the  ostensible  view  of  a  possession 
to  be  taken  at  a  future  day,  or  a  distant  or  uncertain  period, 
is  evidence  of  fraud.  No  specific  lands  being  applied  for,  is 
evidence  of  fraud.  The  concessions  with  the  right  to  locate 
parts  of  the  concessions  at  various  places,  etc.,  is  evidence  of 
fraud.  When  we  look  back  to  a  period  of  the  Spanish  gov- 
ernment prior  to  the  period  to  which  grants  were  antedated,  no 
such  practice  obtains." 

The  reason  impelling  those  assignments  was  palpable  in  the 
Fletcher  vs.  Peck  case.  New  England  capitalists  had  suc- 
cessfully pleaded  before  the  Supreme  Court  that  in  buying 
the  great  Yazoo  claim,  they  had  done  so  in  innocence  of  the 
fraud  and  bribery  by  which  the  act  had  been  passed.  This 
"  innocent  purchaser  "  plea  could  now  be  invoked  in  behalf 
of  the  Florida  and  other  land  frauds.72 

71  Doc.  No.  1538,  "American  State  Papers:  Public  Lands,"  Vol.  VIII. 

72  To  plead  justification  under  the  "innocent  purchaser"  guise  was  a 
common  accompaniment  of  land  and  other   frauds,  and  was  artfully 
arranged.     Thus,  Colonel   Preston  of  the  Land  Office  at  Little  Rock, 
Arkansas,  in  acquainting  Graham,  Commissioner  of  the  General  Land 
Office,  with  further  facts  as  to  the  enormous  frauds  and  impositions 
committed  in  Arkansas,  wrote,  on  October   10,   1829:     ".     .     ,     As  to 
the  fact  that  many  of  these  claims  have  fallen  into  the  hands  of  inno- 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  329 

Another  suspicious  feature  of  these  claims  was  the  defense, 
when  claimants  were  asked  why  they  had  not  built  mills  and 
made  settlements,  that  Indian  hostilities  had  prevented  them. 
This,  as  we  have  seen,  was  an  antique  subterfuge ;  it  had 
been  pleaded  in  the  case  of  the  Loyal  Company,  in  Virginia, 
and  with  success  in  the  argument  in  the  Supreme  Court  of  the 
United  States  to  validate  the  Holland  Company's  title.  Those 
Supreme  Court  decisions  had  pointed  the  sure  way  to  get 
judicial  confirmations  of  the  most  flagrant  and  most  exten- 
sive thefts  of  land,  either  from  Congress  or  from  the  Supreme 
Court  itself. 

Act  after  act  was  passed  by  Congress  either  directly  open- 
ing the  way  for  premeditated  frauds,  or  allowing  measures 
of  indulgence  for  land  claims. 

In  1815  an  innocent-appearing  law,  called  the  "  New  Madrid 
Act "  had  been  enacted  providing  that  any  person  who  owned 
land  in  the  country,  which  land  had  been  materially  injured 
by  earthquakes,  was  authorized  to  locate  a  like  quantity  else- 
where in  Missouri  and  Arkansas.  "  I  will  venture  to  say," 
reported,  in  1823,  Thomas  Sloo,  Jr.,  Government  agent  com- 
missioned to  examine  the  land  offices  in  that  territory,  "  that 
the  New  Madrid  law,  as  it  is  termed,  had  given  rise  to  more 
frauds  and  more  downright  villainy  than  any  law  ever  passed 
by  the  Congress  of  the  United  States.  .  .  ."  In  many 
instances,  Sloo  wrote,  fraudulent  relinquishments  had  been 
made,  and  certificates  obtained,  by  persons  who  had  not  the 
shadow  of  a  claim  to  the  land  surrendered.  His  report  went 
on  to  detail  numerous  other  great  frauds.73 

cent  purchasers,  it  is  worthy  of  serious  consideration,  for  the  greatest 
efforts  have  been  made  to  distribute  them ;  but  I  have  no  doubt  where 
one  is  in  the  hands  of  an  individual  entirely  deceived,  three  are  in 
possession  of  persons  who  have  sufficient  reasons  to  be  on  their  guard. 
.  .  ." — "  American  State  Papers :  Public  Lands,"  Vol.  VI :  7. 

73  Ibid.,  Vol.  IV:  47.  Report  to  George  Graham,  Commissioner  of 
the  General  Land  Office. 


330  HISTORY   OF   THE    SUPREME   COURT 

John  McLean  Goes  on  the  Supreme  Court. 

One  of  the  principal  land  jobbers  in  Congress  from  1823  to 
1829  was  William  McLean,  a  representative  from  Cincinnati. 
His  brother,  John,  was  in  Congress  from  1812  to  1815,  and 
was  Commissioner  of  the  General  Land  Office,  under  Mon- 
roe's administration. 

Significantly,  John  McLean  had  studied  law  at  Cincinnati 
under  Arthur  St.  Clair,  son  of  General  St.  Clair;  of  the  great 
land  frauds  committed  both  under  and  by  the  St.  Clairs  we 
have  already  given  an  adequate  description.  Also  (although 
it  is  an  anticipatory  fact),  it  may  be  added  here  that  three 
years  after  the  death  of  his  first  wife,  John  McLean,  while  a 
Supreme  Court  Justice,  married  in  1843  Sarah  Bella  Garrard, 
daughter  of  that  same  Israel  Ludlow  who,  as  Government 
surveyor,  had  colluded  with  Symmes  and  Dayton  in  appro- 
priating the  site  of  Cincinnati  before  they  had  a  patent,  and 
in  other  land  frauds.  Ludlow,  of  course,  left  a  large  estate. 
As  for  William  McLean,,  he  was  the  most  persistent  promoter 
of  the  various  bills  by  which  several  million  acres  of  land 
were  given  as  a  donation  to  Ohio  canal  companies ;  he  was  par- 
ticularly instrumental  in  securing  the  passage  of  an  act  dona- 
ting a  Government  land  subsidy  of  500,000  acres  for  the  ex- 
tension of  the  Ohio  canal  from  Cincinnati  to  Cleveland. 

"  For  many  years,"  virtuously  reported  a  select  committee 
of  the  House,  on  February  25,  1829,  "  the  public  lands  were 
viewed  as  the  great  resource  of  the  nation.  Its  credit  was 
mainly  based  on  this  property  which  was  pledged  for  the  pay- 
ment of  the  public  debts.  .  .  .  Within  a  few  years,  how- 
ever, a  greater  laxity  in  legislation  prevailed.  Claims  rejected 
at  the  Land  Office  have  been  readily  allozved  by  Congress. 
.  .  .  and  during  the  session  of  1827-1828,  Congress  actu- 
ally gave  away,  to  States  and  individuals,  not  less  than  two 
millions,  three  hundred  thousand  acres  of  choice,  lands,  com- 
prising a  surface  equal  to  that  of  two  of  the  States,  Delaware 


FURTHER    COURSE  OF   COURT    UNDER    MARSHALL  331 

and  Rhode  Island,  and  worth  in  the  market  at  least  three  mil- 
lions of  dollars."  The  committee  expressed  the  hope  that  its 
report  would  "  effectually  check  in  the  future  the  giving  away 
of  this  most  valuable  national  property."  74 

In  1830,  John  McLean  was  appointed  an  Associate  Judge 
of  the  United  States  to  succeed  Justice  Trimble.  In  the  same 
year  President  Jackson  also  appointed  Henry  Baldwin  an 
Associate  Justice  to  succeed  Justice  Bushrod  Washington. 
Baldwin  had  been  a  member  of  Congress  from  1817  to  1822, 
and  from  that  year  to  1830  had  practiced  law  at  Pittsburg, 
representing  landholders. 

.    Congress  Confirms  Numerous  Claims. 

During  this  period,  Congress  had  been  stealthily  confirming 
many  private  land  claims,  alleged  to  be  derived  from  old 
grants,  mainly  Spanish  and  French.  Nearly  all  of  these 
claims  had  been  rejected  by  the  various  Boards  of  Land 
Commissioners,  and  for  twenty  and  thirty  years  had  been 
pushed  by  industrious  promoters,  attorneys  and  lobbyists. 

The  administrations  of  Monroe  and  John  Quincy  Adams 
were  found  to  be  the  auspicious  times  to  get  confirmations 
from  Congress.  From  the  organization  of  the  Government  to 
1828,  but  chiefly  in  the  Monroe  and  Adams'  administrations, 
Congress  had  allowed  7,650,328  acres  in  settlement  of  private 
land  claims;  of  this  area  581,884  acres  in  Mississippi,  966,087 
acres  in  Missouri,  and  5,000,000  acres  in  Louisiana  were  set 
apart  in  satisfaction  of  private  land  claims.75  These  numer- 
ous claims,  while  making  a  formidable  aggregate,  were  not 
to  be  compared  to  the  few  claims  of  immense  extent  vali- 
dated a  little  later  by  decisions  of  the  Supreme  Court  of  the 
United  States. 

A  hint  of  the  methods  used  in  Congress  may  be  seen  in  a 

74  "  American  State  Papers :  Public  Lands,"  Vol.  V :  796. 
« 1  bid.,  Vol.  VI,  Doc.  No.  747. 


332  HISTORY   OF   THE    SUPREME    COURT 

memorial  of  Missouri  inhabitants  to  Congress,  in  1828,  pro- 
testing against  the  laws  being  clandestinely  enacted  for  the 
benefit  of  claimants.  The  prevailing  methods,  the  petitions 
complained,  gave  the  claimants  opportunity  "  through  their 
watchful  and  persevering  agent  at  Washington  to  pursue  the 
same  course  that  the  heirs  of  Frangois  Vallee  did  last  year, 
and  obtain,  if  possible,  a  confirmation  of  their  claims  at  some 
unguarded  time  which  might  happen  toward  the  end  of  the 
session."  76 

The  Board  Rejects  the  Arredondo  Claim. 

But  the  partisan  factions  in  Congress,  with  their  eyes  on 
political  advantage,  dared  not  venture  to  excite  public  opinion 
by  confirming  certain  huge  Louisiana  and  Florida  private 
land  claims.  Upon  these  audacious  claims  public  attention 
had  long  been  focused ;  if  they  were  confirmed  that  act  of  itself 
would  entail  the  confirmation  of  any  other  claims,  the  issues 
involved  in  which  were  the  same ;  as  a  measure  of  political 
tactics,  it  was  then  considered  extremely  unwise  to  confirm 
particular  claims  that  so  many  Government  Boards  and  of- 
ficials had  denounced  as  spurious.  All  that  Congress  would 
undertake  was  to  use  indirection  in  behalf  of  the  spurious 
claims;  in  allowing  the  claimants  to  bring  suit,  it  thus  gave 
their  claims  a  partial  recognition.  It  was  to  the  Supreme 
Court  that  the  claimants  eagerly  looked  for  final  confirmation, 
and  every  exertion  was  bent  in  that  direction. 

The  composition  of  the  Board  of  Land  Commissioners  for 
East  Florida  had  been  somewhat  changed.  In  its  final  re- 
port to  Congress,  in  1828,  this  Board,  while  recommending 
some  claims  for  confirmation,  rejected  others  of  a  proved 
fraudulent  nature.  It  rejected  Francisca  Aguilar's  claim  to 
30,000  acres.  The  claim  of  J.  M.  Arredondo  to  50,000  acres 
and  that  of  F.  M.  Arredondo  to  250,000  acres,  were  thrown 

70  Ibid.,  509-510.  The  Vallee  Claim  was  the  Mine  la  Motte  tract  of 
27,000  arpents. 


FURTHER    COURSE   OF    COURT   UNDER    MARSHALL  333 

out  as   self-evidently  spurious.     Likewise   was  the  claim  of 
Peter  Miranda  to  368,640  acres,  bordering  on  Tampa  Bay. 

The  claimants  could  not  produce  a  single  original  deed  for 
any  of  these  and  other  grants.  Their  entire  case  rested  upon 
copies  of  copies  of  originals;  these  copies  of  copies  were 
certified  by  Thomas  de  Aguilar,  Secretary  of  the  last  Spanish 
Governor  in  Florida.  The  most  diligent  search  on  the  part 
of  the  United  States  Government  officials  failed  to  reveal  any 
originals,  or  any  traces  of  them,  in  the  archives. 

In  passing  upon  the  Miranda  claim  the  Board  reported  that 
it  did  not  believe  that  Governor  White,  when  living,  ever  made 
a  grant  of  twenty  thousand  acres  to  any  individual,  "  what- 
ever he  may  have  done  since  dead."  The  Board  went  on 
to  say  of  the  activities  of  Thomas  de  Aguilar,  "  It  was  over 
this  last  office  that  Thomas  de  Aguilar  presided ;  it  was  from 
this  office  that  so  many  monstrous  grants  have  emanated ;  it 
is  from  this  office  that  the  originals  of  Thomas  de  Aguilar's 
certificates  of  grants  are  lost,  and  it  is  in  this  office  that  the 
original  of  the  grant  before  us  is  to  be  found."  ™ 

But  who  were  the  real  claimants  to  these  vast  grants? 
They  were  not  Spaniards  at  all;  they  were  Northern  capital- 
ists and  politicians  such  as  General  Jasper  Ward  who  claimed 
128,000  acres  of  the  grant  said  to  have  been  given  to  F.  M 
Arredondo  &  Son,  and  Henry  Eckford,  a  rich  New  York 
shipbuilder  and  politician,  who  set  up  a  claim  to  46,080  acres 
of  the  alleged  Miranda  grant.  As  for  the  claims  in  West 
Florida,  alleged  to  be  derived  from  the  former  British  gov- 
ernment, they  totalled  more  than  1,000,000  acres;  all,  re- 
ported Joseph  M.  White  to  President  John  Quincy  Adams, 
on  February  n,  1829,  "appear  to  be  entirely  unfounded  in 
law  or  equity."  78 

Of  the  egregious  frauds  in  the  Louisiana  Purchase  and  in 

77  "  American  State  Papers :  Public  Lands,"  Vol.  VI :  97. 

78  Ibid.,  Vol.  V :  633-634.     White  was  assistant  counsel  to  the  Govern- 
ment on  Spanish  and  French  ordinances  affecting  land  titles  in  Florida 
and  other  territories. 


334  HISTORY   OF   THE    SUPREME    COURT 

Florida  we  have  given  here  the  merest  suggestive  outline  of 
the  vast  mass  of  facts  embodied  in  the  public  archives;  the 
recital  of  the  whole  would  require  several  volumes  in  them- 
selves. Altogether,  the  private  land  claims  at  this  time, 
reached,  it  was  estimated,  about  12,000,000  acres.  Unable 
to  get  their  claims  recommended  by  the  Land  Office,  or 
definitely  validated  by  Congress,  corrupt  as  both  were,79  the 
promoters  of  the  rejected  fraudulent  claims  now  placed  their 
final  hopes  in  the  Supreme  Court  of  the  United  States. 

Marshall  Validates  the  Arredondo  Claim. 

The  Government  vigorously  contested  the  F.  M.  Arredondo 
claim.  Deducting  certain  tracts  apparently  confirmed  to  the 
Arredondos,  this  disputed  claim  covered  a.i  area  of  289,645 
acres.  It  lay  largely  in  the  county  of  Alachua,  and  its  east- 
ern boundaries  comprised  almost  the  whole  of  the  northeastern 
coast  of  Florida,  including  Jacksonville  and  other  cities;  its 
center  was  the  site  of  the  present  city  of  Gainesville. 

The  Superior  Court  for  the  Eastern  District  of  Florida,  act- 
ing upon  precedents  created  by  the  Supreme  Court  of  the 
United  States,  confirmed  the  claim.  The  Government  then 
carried  the  case  on  appeal  to  the  Supreme  Court  at  Washing- 
ton. 

The  Government  charged  fraud ;  it  argued  that  the  In- 
tendant  of  Cuba  had  no  authority  to  make  such  grants ;  that 
the  time  the  grant  was  alleged  to  have  been  made,  in  1817,  the 

79  Many  of  the  members  of  Congress,  as  has  been  noted,  were  on 
the  payrolls  of  the  Bank  of  the  United  States,  and  were  otherwise 
profiting  from  corrupt  legislation.  Not  a  few  of  the  members  of  Con- 
gress became  millionaires.  As  for  the  Land  Office,  its  officials  were 
frequently  under  fire  of  charges  of  corruption.  Charges  of  fraud  and 
corruption  against  Graham,  Commissioner  of  the  General  Land  Office, 
and  Surveyor  George  Davis,  were  brought  by  Deputy-Surveyor  Wilson, 
in  1827,  but  were  dismissed  by  the  House  Committee  on  Public  Lands. 
(See,  "American  State  Papers:  Public  Lands,"  Vol.  IV:  922-957.) 
Graham  and  Davis  retorted  by  charging  that  corrupt  individuals  were 
behind  Wilson. 


FURTHER    COURSE   OF    COURT    UNDER    MARSHALL  335 

country  was  under  the  jurisdiction  of  Great  Britain;  that, 
even  if  the  grant  were  genuine,  the  Arredondos  had  failed  to 
perform  that  condition  of  the  grant  requiring  them  to  es- 
tablish two  hundred  Spanish  families  within  three  years  from 
the  date  of  the  grant.  Finally,  the  Arredondos  (or  rather, 
the  American  capitalists  holding  the  claim)  could  produce 
no  original  grant;  all  that  they  had  to  show  was  an  alleged 
copy  of  a  copy  of  the  original,  which  copy  was  certified  by 
Aguilar. 

Chief  Justice  Marshall  decided  in  January,  1832,  that  the 
claim  was  valid. 

Just  as  in  the  Yazoo  case  he  had  ignored  the  facts  of  fraud, 
notwithstanding  that  the  Grand  Jury  published  testimony  con- 
taining the  confessions  of  legislators,  so  here  he  also  de- 
cided that  there  was  an  absence  of  proof.  Don  Onis,  who 
had  been  commissioned  by  the  King  of  Spain,  in  1816,  to 
negotiate  with  the  American  Government,  had  admitted  that 
the  various  large  claims  "  were  fraudulent  and  a  disgrace  to 
his  country."  80  Successive  Boards  of  Land  Claim  Commis- 
sioners, conducting  their  examinations  on  the  spot,  and  fa- 
miliar with  the  intimate  circumstances,  had  rejected  the  claim 
as  fraudulent.  The  General  Land  Office  had  refused  to  pass 
it,  and  so  had  Congress.  The  extensive  corruption  of  George 
J.  F.  Clarke  and  Aguilar  was  established  and  conclusive ;  many 
Government  officials  had  detailed  the  facts,  and  these  facts 
had  neither  been  disproved  nor  had  their  accuracy  been  chal- 
lenged. 

Chief  Justice  Marshall  and  his  concurring  coadjutors  chose 
not  to  see  the  fraud.  Had  they  even  countenanced  it,  they 
could  hardly  have  reconciled  with  their  validation  the  vaunted 
principle  of  law  that  fraud  vitiated  every  transaction.  Their 
only  recourse  was  to  evade  and  ignore  the  actual  facts.  All 
that  they  preferred  to  see,  as  in  the  Yazoo,  Holland  Company 

80  See,  Assistant  Attorney-General  Call's  statement,  VIII  Peters :  Ap- 
pendix, 721. 


336  HISTORY  OF  THE  SUPREME   COURT 

and  Fairfax  cases,  was  the  official,  formal  act;  there  was  the 
official  record  that  the  land  had  been  surveyed,  and  there  was 
Aguilar's  certificate  that  the  copy  of  a  copy  of  the  grant  was 
a  copy  of  the  original.  Aguilar  was  a  recognized  Spanish 
official,  therefore  —  according  to  Marshall's  logic  —  his  cer- 
tificate was  an  official,  legitimate  attestation.  The  moment 
the  grant  was  made,  Marshall  held,  a  vested  right  was  con- 
ferred. 

Those  who  in  the  light  of  the  facts  herein  set  forth,  desire 
to  see  to  what  lengths  judicial  sophistry  and  disingenuous- 
ness  may  be  stretched,  are  respectfully  advised  to  read  Mar- 
shall's decision  in  full.81 

The  only  dissenting  opinion  was  that  of  Justice  Thompson. 
The  evidence,  Thompson  protested,  showed  that  in  February, 
1822,  one  year  after  the  ratification  of  the  treaty  by  the  United 
States,  two  negroes  were  the  only  persons  who  could  be  found 
on  the  whole  of  the  289,645  acres. 

The  decision  in  this  case  opened  the  immediate  way,  then 
and  later,  for  the  validation  by  the  Supreme  Court  of  a  very 
considerable  number  of  claims  equally  fraudulent,  and  all  of 
which  had  been  strongly  contested  by  the  Government.82 

The  Astor  Decision. 

This  decision,  coming  during  the  period  when  the  Supreme 
Court  had  rendered  a  decision  in  another  case  causing  much 
public  agitation  —  the  Astor  case  —  made  the  Supreme  Court 
a  target  for  much  denunciation. 

During  the  Revolution,  a  tract  comprising  51,012  acres  in 
Putnam  County,  New  York,  held  by  Roger  Morris  and  his 
wife,  Mary,  had  been  confiscated  by  the  State  on  the  ground 

81  See,  VI   Peters,  689-759.     This  decision   served  as  a  great  prece- 
dent ;  it  was  cited  as  authority  in  no  less  than  several  hundred  sub- 
sequent cases. 

82  See,  U.  S.  vs.  Segui ;  U.  S.  vs.  Seton ;  U.  S.  vs.  Sibbald,  etc.,  etc., 
X  Peters,  303-324. 


FURTHER   COURSE   OF   COURT    UNDER    MARSHALL  337 

of  their  being  Tories.  This  land  was  part  of  the  estate  of 
Adolphus  Phillips,  the  son  of  Frederick  Phillips,  whose  ca- 
reer as  a  promoter  of  sea  piracies  and  as  a  bribe-giver,  has 
been  narrated  in  Chapter  I.  Mary  Morris  was  a  descendant 
of  Adolphus  Phillips.  After  confiscating  the  land,  the  State 
sold  it  to  various  farmers;  by  1809,  seven  hundred  families 
were  settled  on  the  property  which  they  had  greatly  improved. 

In  that  year  John  Jacob  Astor  learned  that  there  were 
grounds  in  law  by  which  the  farmers  could  be  ousted  from 
possession.  These  grounds,  as  Astor  was  informed,  were  that 
inasmuch  as  the  Morrises  had  held  a  life  lease  only,  the 
State  had  no  power  to  confiscate  a  life  lease.  The  property, 
Astor  was  told,  was  really  owned  by  the  Morris  children,  to 
whom,  by  the  original  provisions,  .it  was  to  revert  after  their 
parents'  lease  had  been  extinguished.  Astor  hunted  up  the 
heirs,  and  by  dissimulation,  succeeded  in  buying  up  their  claim 
on  payment  of  $100,000.  Astor 's  lawyers  notified  the  occu- 
pying farmers  that  not  they  but  Astor  owned  the  land  with  all 
its  valuable  improvements. 

A  great  public  uproar  resulted,  and  the  Legislature  refused 
to  recognize  Astor's  claim.  But  Astor  pressed  it  in  the  courts, 
and  it  was  finally  validated  by  the  Supreme  Court  of  the 
United  States,  Justice  Story  writing  the  court's  opinion.  The 
State  of  New  York  was  compelled  in  1827  to  give  Astor 
$500,000  in  five  per  cent,  stock,  specially  issued,  for  the  sur- 
render of  his  claim.83 

An   Unaccountable   Delay. 

Having  gone  so  far  in  the  Arredondo  decision,  the  Supreme 
Court  of  the  United  States,  blissfully  oblivious  to  criticism, 

83  Case  of  Carver  vs.  Jackson  ex.  dem.  Astor  et  al.,  V  Peters,  80. 
Also  Journal  of  the  (N.  Y.)  Senate,  1815:  216  —  Journal  of  the  (N. 
Y.)  Assembly,  1818:  261,  and  Ibid.,  1819.  See,  also,  "A  Statement  and 
Exposition  of  the  Title  of  John  Jacob  Astor  to  the  Lands  Purchased 
by  him  from  the  surviving  children  of  Roger  Morris  and  Mary,  his 
AVife."  New  York,  1827. 


338  HISTORY   OF   THE    SUPREME    COURT 

now  proceeded  to  confirm  a  large  batch  of  land  claims.  But 
in  the  case  of  one  claim  —  that  of  Soulard's  Heirs  to  10,000 
arpents  of  land,  about  seventy  miles  north  of  St.  Louis  —  a 
remarkable  circumstance  developed.  Although  this  case  came 
up,  on  appeal,  in  1830,  after  the  rejection  of  the  claim  by 
the  United  States  District  Court  at  St.  Louis,  Marshall  held 
it  under  advisement,  and  no  confirming  decision  was  rendered 
until  nearly  six  years  later. 

Why  this  prolonged  delay?  Was  it  because  of  the  great 
sensation  that  the  revelations  of  frauds  in  Arkansas  and  Mis- 
souri were  making  in  the  public  mind? 

After  both  the  Board  of  Land  Commissioners  and  the  Su- 
perior Court  had  confirmed  a  hundred  and  thirty-one  claims, 
represented  by  John  J.  Bowie,  the  Government  came  across 
evidence  proving  that  Bowie  had  either  himself  committed,  or 
procured,  the  forgery  of  the  name  of  the  former  Spanish 
Governor  Miro,  and  that  he  had  suborned  the  perjuries  by 
which  they  had  been  supported.  The  Superior  Court  in  1831 
found  itself  compelled  to  reverse  and  annul  its  own  judg- 
ment. So  strong  was  the  evidence,  that  the  Supreme  Court 
of  the  United  States  could  not  do  otherwise  than  sustain  the 
Government.  Notwithstanding,  the  Bowie  claimants  lobbied 
in  Congress  for  a  confirmation,  but  failed  to  get  it.84 

In  the  District  Court  at  St.  Louis  Judge  Peck  had  re- 
peatedly exposed  and  denounced  Soulard's  frauds.  Soulard 
had  been  the  Surveyor-General  of  Upper  Louisiana  under  the 
former  Government;  in  the  case  of  Joseph  Wherry  et  al.  vs. 
the  U.  S.,  Judge  Peck  said  that  the  circumstances  "  raise 
the  presumption  of  intentional  fraud,"  implicating  Soulard  "  in 
whose  handwriting  the  concession  proved  to  be."  Soulard 

84  Hampshire's  Reports  (U.  S.  Circuit  and  District  Courts)  [1820- 
1856],  pp.  123,  127,  etc.  Also  27  Federal  Cases,  Case  No.  16,2163,  in 
which  Judge  Johnson  describes  the  great  corruption,  forgeries  and 
perjuries.  Also  the  Supreme  Court's  decision  in  VI  Peters.  222.  Also, 
"American  State  Papers:  Public  Lands,"  Vol.  VII:  666-669.  (Report 
of  House  Committee  on  Public  Lands,  Feb.  24,  1835.) 


FURTHER   COURSE  OF   COURT   UNDER   MARSHALL  33Q 

had  admitted  in  a  letter  that  his  most  intimate  friends  were 
interested  in  his  surveys,  and  when  called  as  a  witness  in  St. 
Louis  he  had  refused  to  answer  all  questions  as  to  the  antedat- 
ing of  concessions. 

Judge  Peck  declared,  with  exhibits,  that  a  large  number  of 
claims  had  been  antedated,  and  he  detailed  how  "  the  fifty-one 
concessions  of  eight  hundred  arpents  each,  surveyed  by  the 
assignees  of  those  in  whose  favor  the  concessions  were  made, 
are  attended  with  many  evidences  of  fraud."  Judge  Peck  sar- 
castically commented  upon  the  fact  that  twenty-four  miles  of 
surveys  were  alleged  to  have  been  made  on  a  single  day.  Qn 
the  same  ground  —  that  the  claims  were  fraudulent  in  their 
inception  —  Judge  Peck  threw  out  the  claims  of  Delassus, 
of  August  Choteau,  and  many  other  claims.85 

But,  in  January,  1835,  Chief  Justice  Marshall  reversed  the 
lower  court  and  confirmed  a  number  of  these  claims. 

The  Delassus  claim  for  a  league  square  in  Missouri,  and 
the  Choteau  claim  to  a  valuable  stretch  of  1,281  arpents,  near 
the  town  of  St.  Louis,  were  validated.  Another  Choteau  claim 
for  a  league  square,  which  claim  had  been  rejected  by  the 

85  "  American  State  Papers:  Public  Lands,"  Vol.  VI:  226-247.  (Doc. 
No.  874.)  Delassus  had  been  the  successor  of  Trudeau,  as  Governor, 
at  St.  Louis,  six  years  before  the  cession  to  the  United  States.  De- 
scribing the  antedated  grants  made  by  Trudeau  and  Delassus,  Judge 
Peck  later  wrote : 

"  While,  as  I  have  said,  Delassus  made  his  antedated  concessions 
bear  date  for  the  most  part  in  1799  and  1800,  for  the  purpose  of  cover- 
ing up  matters  handsomely,  and  preserving  fair  appearances,  that  no 
excess  should  appear  to  have  been  committed  by  him  near  the  close  of 
his  official  career ;  Trudeau,  his  predecessor,  in  the  antedated  conces- 
sions made  by  him,  after  he  had  left  the  government,  and,  of  course, 
not  until  after  the  treaty  of  cession  by  Spain  to  France  was  known, 
was  compelled  for  different  reasons,  to  make  them  bear  date  toward 
the  close  of  the  period  of  his  government,  and  within  about  the  last 
three  years  of  it ;  so  that  it  will  be  perceived  by  looking  at  the  con- 
cessions of  the  Spanish  government,  issued  at  the  post  of  St.  Louis, 
nine-tenths,  possibly  near  nineteen-twentieths,  of  the  quantity  of  land 
conceded  during  the  thirty-three  years  of  the  Spanish  government  was 
conceded  in  a  little  more  than  four  years;  conceded  neither  at  the 
first,  nor  at  the  last  of  the  government,  but  in  the  years  1797,  1798,  1799, 
and  1800,  and  a  few  of  the  antedated  claims  in  1796."  "  American 
State  Papers:  Public  Lands,"  Vol.  VIII:  837. 


34O  HISTORY   OF   THE    SUPREME    COURT 

Board  of  Land  Commissioners  as  "  unsupported  by  actual  in- 
habitation and  cultivation,"  and  which  had  been  declared  in- 
valid by  the  U.  S.  District  Court,  at  St.  Louis,  was  confirmed 
by  Marshall.  Who  the  actual  owners  of  these  and  other  claims 
were,  the  records  do  not  state.  With  these  and  prior  deci- 
sions as  precedents,  the  Board  of  Land  Commissioners  lost  no 
time  in  confirming  a  large  number  of  similar  claims. 

The  Mitchell  Claim  of  1,200,000  Acres. 

•  The  validation  of  the  enormous  Mitchell  claim,  how- 
ever, was  the  case  conspicuously  commanding  public  atten- 
tion. 

The  real  promoters  of  this  claim  were  George  Griswold,  a 
rich  New  York  shipper,80  and  others,  combined  with  other 
capitalists  and  with  some  of  the  most  noted  politicians  in  the 
country.  They  later  formed  the  Appalachicola  Land  Com- 
pany. Griswold  was  subsequently  implicated  in  vast  land 
frauds  in  Texas.  The  Mitchell  claim  covered  the  immense 
area  of  exactly  1,200,060  acres  beginning  a  little  west  of 
Tallahassee,  Florida ;  it  included  what  are  now  the  counties 
of  Franklin,  Wakulla  and  Liberty,  and  parts  of  other  counties. 
The  persons  ostensibly  bringing  the  suit  were  Colin  and  Rob- 
ert Mitchell,  Benjamin  Marshall  and  others,  as  the  heirs  and 

80  Griswold  had  many  ships  plying  in  the  East  India  and  China 
trade.  He  was  one  of  the  promoters  and  original  directors  of  the 
Bank  of  America  at  a  time  when,  in  1812,  a  legislative  investigation 
revealed  (as  we  have  before  noted)  that  its  charter  was  obtained  by 
Bribery.  The  favors  allowed  by  the  government  to  the  shippers  in  the 
East  India  and  China  trade,  enabling  them  to  reap  enormous  profits 
and  use  government  money  as  their  private  capital,  aroused  the  opposi- 
tion of  other  shippers.  "  Why,"  wrote  the  Mercantile  Society,  of  New 
York,  in  1821,  to  the  House  Committee  on  Manufactures,  "  should  the 
merchant  engaged  in  the  East  India  trade,  who  is  the  overgrown  capi- 
talist, have  the  extended  credit  of  twelve  months  in  his  duties,  the 
amount  of  which  on  one  cargo  furnishes  nearly  a  sufficient  capital  for 
completing  another  voyage,  before  his  bonds  are  payable?" — Reports 
of  Committees,  Second  Session,  Sixteenth  Congress,  1820-21,  Vol.  I, 
Doc.  No.  24. 


FURTHER    COURSE   OF   COURT    UNDER    MARSHALL  34! 

representatives  of  John  McNish,  to  whom  the  claim  had  been 
conveyed  by  John  Forbes  and  Company.87  This  firm  had  suc- 
ceeded that  of  Panton,  Leslie  and  Company. 

Panton  had  been  a  Tory  during  the  Revolution,  and  had 
fled  to  Florida.  There  he  had  gone  into  the  varied  business 
of  importing  and  selling  negroes  from  Africa,  and  of  trading 
with  the  Indian  tribes.  This  trade  was  the  usual  one  of  de- 
bauching the  Indians  and  then  grossly  swindling  them  by 
charging  them  extortionate  prices  for  merchandise  in  exchange 
for  their  furs.  It  was  a  trade  that  elsewhere  for  many  years 
yielded  John  Jacob  Astor  $500,000  a  year,  and  enabled  him 
to  corrupt  public  officials  for  immunity;  on  one  occasion  (in 
1817)  Lewis  Cass,  a  leading  Democratic  politician,  Secretary 
of  War  under  Jackson,  and  later  Democratic  candidate  for 
the  Presidency,  received  $35,000  from  Astor  for  services  not 
stated.88 

The  firm  of  Panton,  Leslie  and  Company  had  pretended 
claims  for  $86,000  against  the  Seminole  Indians,  and  other 
claims  for  a  large  amount  against  the  Choctaws  and  Chicka- 
saws.  After  the  year  1804  the  firm  became  John  Forbes  and 
Company.  The  Spanish  Governor  granted  to  this  firm  the 
exclusive  privileges  of  importing  goods  free  of  duty,  and  un- 
der certain  specified  conditions,  of  trading  with  the  Indians ; 
the  court  records  speak  of  the  great  influence  the  firm  had 
with  the  Spanish  Governor.  The  firm  presented  two  claims 
against  the  Indian  tribes,  one  for  debt,  the  other  for  alleged 
depredations  on  their  stores.  The  result  was  that  John  Forbes 
and  Company  turned  up  with  two  deeds,  conveying  a  total  of 
1,200,000  acres,  near  Tallahassee.  These  deeds,  they  claimed, 
were  given  by  the  Seminole  and  Lower  Creek  Indians,  in  two 

87  IX  Peters,  711. 

88  The   full  details  of  this  debauching  of  the  Indians  are  given  in 
the  "  History  of  the  Great  American  Fortunes,"  Vols.  I  and  III.     The 
Secretary  of   War,   at    that   time,   had    supreme   jurisdiction   over   the 
Indian  tribes.     The  records  frequently  tell  of  claims  trumped  up  against 
the  Indians. 


342  HISTORY   OF    THE    SUPREME    COURT 

cessions,  and  were  (so  they  alleged)  confirmed  by  the  Spanish 
Governor,  in  i8o6.89 

This  pretended  transaction,  it  may  be  said,  was  one  of  the 
causes  of  the  Seminole  uprising,  causing  much  loss  of  life. 
No  history  has  yet  mentioned  the  underlying  causes  of  the 
Seminole  War,  which,  in  reality,  sprang  from  such  enormities 
as  this. 

No  Original  Deed  Produced. 

John  Forbes  and  Company  sold  their  claim  to  the  1,200,000 
acres  to  various  American  capitalists.  The  Land  Office  long 
refused  to  recognize  the  claim,  or  to  have  anything  to  do 
with  it.  But  after  years  of  lobbying,  the  promoters  succeeded, 
in  1828,  in  getting  an  act  passed  by  Congress  authorizing  the 
claimants  to  institute  proceedings  in  the  courts  to  try  the  valid- 
ity of  their  title. 

As  in  the  Arredondo  case,  the  claimants  in  this  case  could 
not  produce  original  papers;  they  had  nothing  more  than 
copies  of  copies,  alleged  to  have  been  certified  by  Spanish  offi- 
cials. The  Government  officials  ransacked  the  Spanish  ar- 
chives, but  not  a  single  trace  of  any  original  document  could 
be  discovered. 

The  Superior  Court,  for  middle  Florida,  indignantly  re- 
jected the  claim  as  fraudulent,  pointing  out  (among  other 
things)  that  the  water  mark  of  the  paper  purporting  to  be 
that  used  by  the  Spanish  Governor  was  extremely  sus- 
picious. That  the  judge  would  ever  detect  this,  had  not  been 
anticipated  by  the  claimants. 

The  claimants  took  the  case  to  the  Supreme  Court  of  the 
United  States.  There,  Daniel  Webster  was  one  of  their  at- 
torneys. The  Government  contended  that  not  the  Indians, 
but  the  Spanish  Government,  should  have  been  held  to  account 
for  indemnity  for  losses  sustained  by  the  firm  while  trading 

89  "American  State  Papers:  Public  Lands,"  Vol.  V:  329-341.  (Doc. 
No.  599-) 


FURTHER    COURSE  OF   COURT    UNDER    MARSHALL  343 

under  a  special  and  exclusive  license  from  Spain;  that  the 
Government  had  no  knowledge  of  the  existence  of  the  firm, 
or  its  claims  on  Spain,  or  the  title  on  which  the  suit  was 
founded,  and  that  the  deeds  were  executed  by  Indians  nearly 
all  of  whom  were  residing  in  the  territorial  limits  of  the 
United  States. 

The  Government  further  set  forth  that  the  cessions  were 
not  the  genuine  acts  of  the  Seminole  nation ;  that  no  such 
firm  as  Panton,  Leslie  and  Company  existed  at  the  time  of 
the  execution  of  the  deeds  —  both  Panton  and  Leslie  were 
then  dead  —  and  that  the  Spanish  Governor  Folch  had  no 
power  to  ratify  the  cessions,  inasmuch  as  most  of  the  cession 
was  in  another  province  of  Florida,  and  entirely  out  of  his 
jurisdiction.  The  genuineness  of  the  deed  purporting  to  con- 
vey the  grant  was  also  sharply  questioned. 

The  Supreme  Court  Validates  the  Claim. 

Nevertheless,  the  Supreme  Court  of  the  United  States,  in 
January,  1835,  reversed  the  lower  court,  and  validated  the 
whole  transaction. 

Of  the  long-continued  and  wides'pread  defrauding  of  the 
Indian  tribes,  the  Supreme  Court  well  knew ;  scandals  were 
continually  coming  into  the  public  records  and  prints. 

Only  a  few  years  before,  in  1825,  a  great  scandal  had  been 
caused  by  the  bribery  of  Creek  chiefs,  in  Georgia,  by  Gov- 
ernment agents  to  influence  them  to  cede  several  million  acres 
of  their  domain  in  Alabama,  and  all  of  their  land  in  Geor- 
gia.90 But  assuming  that  the  claims  of  Panton,  Leslie  and 
Company  against  the  Indians  were 'legitimate,  and  accepting 
the  assertion  that  the  Indians  had  actually  bartered  away 

00  Senator  Benton,  who  was  Chairman  of  the  Senate  Committee  on 
Indian  Affairs,  at  the  time,  described  this  corruption,  and  named  the 
sums,  in  his  "  Thirty  Years  In  The  Senate,"  pages  58-60.  So  enraged 
were  the  Creeks  at  this  disposing  of  their  land,  that  they  killed  Mc- 
Intosh  and  another  chief  who  had  signed  the  treaty. 


344  HISTORY   OF   THE   SUPREME   COURT 

1,200,000  acres  of  their  possessions,  the  Supreme  Court  held 
that  the  cessions  were  valid,  having  been  made  at  Indian  trea- 
ties, in  the  presence  of  Spanish  officers,  and  with  their  full 
approbation. 

But  what  of  the  paper  with  the  peculiar  water  mark?  Jus- 
tice Baldwin,  who  wrote  the  court's  opinion,  skipped  around 
that  ticklish  point  by  dismissing  it  as  "  a  subject  into  which 
we  do  not  feel  at  liberty  to  inquire."  Justice  Baldwin  ad- 
mitted that  the  court  below  had  acted  correctly  in  refusing 
to  grant  the  claimants  a  commission  to  take  testimony  to 
explain  and  account  for  the  suspicious  water  mark,  or  to  per- 
mit the  reading  of  ex  parte  evidence  offered  to  explain  it. 
This  refusal,  Justice  Baldwin  acknowledged,  was  reasonable, 
"because  in  an  appellate  court  no  new  evidence  could  be 
taken  or  received  without  violating  the  best-established  rules 
of  evidence  and  law."  Justice  Baldwin  went  on  to  say  that 
the  Supreme  Court  would  not  say  what  course  it  would  have 
taken  had  the  title  depended  upon  the  date  of  the  paper  de- 
nounced by  the  court  below ;  "  as  the  case  is,"  he  concluded, 
"  it  is  only  one  of  numerous  undisputed  documents  tending 
to  establish  the  grant,  tlje  validity  of  which  is  but  little,  if 
it  could  be  in  any  degree,  affected  by  the  date  of  the  per- 
mission." 91 

In  other  words,  if  the  document  were  forged,  that  was  a 
matter  of  little  consequence.  Ordinary  reason  would  judge 
that  if  claimants  produced  one  document  of  a  suspicious  char- 
acter, that  one  fact  of  itself  would  discredit  all  of  the  other 
evidence  that  they  produced,  however  seemingly  strong.  If 
forgery  was  resorted  to  in  the  case  of  one  document,  was 
it  not  likely  that  perjured  and  suborned  evidence  would  also 
be  presented?  The  one  implied  the  other.  In  common  life, 

91 IX  Peters,  731.  The  Supreme  Court  took  the  position  that  every 
European  government  had  claimed,  and  exercised,  the  right  of  granting 
lands  while  those  lands  were  in  the  occupation  of  the  Indians.  The 
Mitchell  decision  was  followed  by  other  decisions  validating  alleged 
Indian  conveyances.—  See,  U.  S.  vs.  Fernandez  et  al,  X  Peters,  303,  etc. 


FURTHER    COURSE   OF    COURT    UNDER    MARSHALL  345 

if  a  man  be  detected  telling  a  serious  lie,  that  conduct  tends 
to  have  a  disqualifying  effect  upon  all  of  his  other  statements 
and  actions. 

But  the  Supreme  Court,  with  a  delicious  innocence,  accepted 
all  of  the  evidence  as  valid.  In  this  case  it  did  not  even  have 
a  formally  clear  record  upon  which  to  base  its  judgment,  for 
the  court  below  had  expressly  thrown  out  a  crucial  document 
as  presumably  forged.  And  these  were  the  grounds  upon 
which  the  Supreme  Court  gave  a  huge  tract  of  1,200,000  acres 
to  a  handful  of  absentee  capitalists  and  politicians  whose  only 
idea  was  to  dispose  of  it  for  their  personal  profit. 

Judge  Peck's  Severe  Criticism. 

For  its  decisions  in  the  Missouri  and  Florida  land  cases, 
the  Supreme  Court  was  severely  criticised  by  both  Judge 
Peck  and  Assistant  Attorney-General  Call.  Both  of  their 
elaborate  refutations  were  published  by  the  Government  at 
length,  nor  was  any  attempt  made  by  the  Supreme  Court  to 
hale  them  up  for  contempt. 

In  "his  exhaustive  review,  of  December  13,  1835,  Judge  Peck 
cited  the  old  Spanish  and  French  land  laws,  and  demonstrated 
that  previous  to  the  year  1796  no  concession  had  been  made 
which  exceeded  a  league  square,  and  that  not  a  single  con- 
cession had  been  made  during  that  period,  except  upon  the 
condition  of  settlement,  with  a  direct  view  to  cultivation  or 
the  raising  of  cattle.  Judge  Peck  then  proceeded  to  prove, 
point  by  point,  how  the  alleged  large  concessions,  and  all  of 
those  claimed  in  reward  for  services  or  not  made  with  a  direct 
view  to  settlement  and  occupation,  were  antedated. 

"  I  think  it  probable,"  concluded  Judge  Peck,  in  describ- 
ing the  specific  particulars  of  the  extensive  system  of  for- 
gery, "  that  at  the  commencement  of  this  work,  the  first 
experiments  were  on  a  small  scale ;  but  that,  as  the  work  pro- 
gressed, the  minds  of  those  concerned  were  enlarged,  and  their 
labors  were  conducted  upon  a  scale  corresponding  to  that  en- 


346  HISTORY   OF    THE    SUPREME    COURT 

largement  of  their  views.  I  do  not  doubt  that  the  instances 
are  frequent  where  the  same  individual  has  a  small,  and  a 
large,  concession  equally  fraudulent,  sometimes  from  the  rea- 
son above  supposed,  and  sometimes  probably  because  he 
wished  to  have  two  tickets  in  the  lottery,  and  draw  a  smaller 
if  he  should  not  a  larger  prize."  92 

Again  writing  from  St.  Louis  on  February  10,  1836,  to 
Ethan  A.  Brown,  Commissioner  of  the  General  Land  Of- 
fice, Judge  Peck  submitted  another  exhaustive  memorandum 
of  facts  showing  the  precise  circumstances  under  which  the 
fraudulent  land  claims  had  been  forged,  and  proving  why  it 
was  impossible  that  they  could  have  been  genuinely  granted. 

"  Aware,"  he  wrote  in  part,  "  of  the  great  authority  which 
must  justly  be  allowed  to  the  opinions  of  the  highest  tribunal 
of  the  nation,  and  the  feeble  resistance  which  the  voice  of  a 
single  individual  opposes  to  them,  I  could  not  hope  to  sus- 
tain an  opposing  opinion,  however  strong  my  conviction  of  its 
soundness,  upon  any  proofs  short  of  those  which  should  be 
clear  and  convincing. 

"  In  sustaining  my  opinions  with  such  proof,  my  observa- 
tions have  been  protracted  to  a  length  which  I  had  not  fore- 
seen ;  they,  however,  will  be  found,  as  long  as  they  may  appear, 
to  offer  to  him  who  is  desirous  to  understand  the  questions 
which  belong  to  an  investigation  of  the  Spanish  land  claims, 
the  shortest  road  by  which  he  shall  be  enabled  to  arrive  at 
the  truth."  In  his  preliminary  observations  Judge  Peck  wrote, 
"  I  shall  offer  no  apology  for  controverting  the  opinions  of 
the  Supreme  Court,  in  an  inquiry  after  truth,  when  in  the 
prosecution  of  inquiry,  that  controversy  becomes  necessary."  93 

92  "  American  State  Papers :  Public  Lands,"  Vol.  VIII :  807. 

93  It  is  obviously  out  of  the  question,  in  the  scope  of  this  work,  to 
give   even    a   satisfactorily   comprehensive    summary   of   Judge    Peck's 
very  extended  examinations  of  the  Spanish  land  claims.     The  student 
who  wishes  to  consult  them  in  detail  is  referred  to  Doc.   No.   1538, 
"American   State   Papers:    Public  Lands,"  Vol.  VIII:   pages  797-809, 
810-812,  etc.    Judge  Peck's  statements  included  certified  transcripts  of 
Spanish  and  French  records  from  the  old  land  office  at  St.  Louis. 


FURTHER    COURSE   OF    COURT    UNDER    MARSHALL  347 

A  singularly  suspicious  fact  of  which  Judge  Peck  informed 
the  Commissioner  of  the  General  Land  Office,  was  that  al- 
though his  (Judge  Peck's)  views  and  opinions  and  proofs  had 
been  forwarded  in  print,  yet  the  Attorney-General  of  the 
United  States  had  not,  it  appeared,  even  offered  them  to  the 
Supreme  Court  of  the  United  States.  Did  this  imply  collu- 
sion with  the  land  forgers  on  the  part  of  the  Attorney-Gen- 
eral? Had  certain  facts  been  withheld  from  the  Supreme 
Court  ?  This  we  do  not  know ;  but,  as  we  shall  see,  it  was 
by  no  means  uncommon  for  Attorneys-General  to  collude  with 
land  claimants  for  whom,  when  in  Congress  or  in  the  private 
practice  of  law,  they  had  been  attorneys. 

General  Call  Controverts  the  Supreme  Court. 

Assistant-Attorney-General  Call,  who  had  investigated  and 
defended  the  Florida  land  cases  for  the  Government,  wrote 
fully  as  searching  and  scathing  a  criticism  of  the  Supreme 
Court.  In  reply  to  a  resolution  passed  February  23,  1835,  by 
the  House  of  Representatives,  directing  a  report  on  the  Florida 
land  claims,  General  Call  prepared  an  elaborate  review  which 
he  sent  to  Levi  Woodbury,  Secretary  of  the  Treasury.  After 
stating  that  cases  involving  nearly  a  million  and  a  half  acres 
of  land  in  Florida  (irrespective  of  the  huge  claims  already 
validated  by  the  Supreme  Court),  had  been  largely  dependent 
upon  the  decision  in  the  Mitchell  case,  General  Call  then  spe- 
cifically proved  how  the  grants  had  been  either  antedated  or 
unlawfully  given.  He  went  on : 

".  .  .  When  we  consider  the  time  at  which  this  change 
occurred  —  when  we  consider  that  Don  Onis  was  commissioned 
to  negotiate  with  this  Government  for  the  cession  of  Florida, 
as  early  as  the  year  1816,  it  is  a  fair  presumption,  in  the  ab- 
sence of  any  law  to  sustain  these  grants,  that  they  were  made 
in  anticipation  of  the  transfer  of  the  country,  and  designed 
as  a  fraud  on  the  Government  of  the  United  States. 

"  This,  however,  in  the  opinion  of  the  Supreme  Court  of 


348  HISTORY   OF   THE    SUPREME    COURT 

the  United  States,  seems  to  constitute  no  objection  to  the  valid- 
ity of  these  grants.  In  the  case  of  Clark,  8  Peters,  we  find 
the  following  remark :  '  It  is  stated  that  the  practice  of  mak- 
ing large  concessions  commenced  with  the  intention  of  ced- 
ing the  Floridas,  and  these  grants  have  been  treated  as  frauds 
on  the  United  States.'  '  The  increased  motives  for  making 
them  have  been  stated  in  argument,  and  their  influence  can- 
not be  denied.  But  (say  the  court)  admitting  the  charge  to 
be  ivell  founded  —  admitting  the  Spanish  government  was 
more  liberal  in  its  cessions,  than  before  —  ought  this  circum- 
stance to  affect  bona  fide  titles  to  which  the  United  States 
made  no  objection?' 

"  Now,  with  the  most  profound  respect  for  the  opinion  of 
the  Supreme  Court  of  the  United  States,  I  cannot  admit  that 
the  proposition  is  correctly  stated,  or  that  the  deduction  is 
properly  drawn  from  the  premises. 

"  There  is  a  vast  difference,  I  conceive,  between  the  lib- 
erality of  the  'Spanish  Government'  and  the  unlawful  and 
unauthorized  acts  of  a  Spanish  governor,  who  thinks  proper 
to  transcend  his  power  in  making  grants,  because  he  perceives 
that  the  country  is  about  to  be  transferred  to  a  foreign  gov- 
ernment. The  government  of  Spain,  in  the  person  of  the 
King,  possessing  sovereign  and  unbounded  power  over  the 
royal  domain,  had  an  undeniable  right,  in  some  instances,  to 
exercise  liberality  in  its  disposal.  While  the  governor  of  a 
province,  acting  under  fixed  and  limited  rules  prescribed  by 
law,  could  not  go  beyond  the  law  for  the  purpose  of  being 
liberal,  and  if  he  did,  all  such  grants  made  by  him  must  be 
absolutely  null  and  void."  94 

i 
The  Peculiar  Absence  of  Original  Deeds. 

Elsewhere,  in  the  logical  course  of  the  scrutiny,  General  Call 
wrote : 

94  "  American  State  Papers :  Public  Lands,"  Vol.  VIII :  252. 


FURTHER    COURSE   OF    COURT    UNDER    MARSHALL  349 

"  You  will  perceive  that,  in  every  case  contained  in  this  ab- 
stract, where  the  original  title  papers  are  not  produced,  the 
claim  is  presented  under  a  concession,  and  not  a  perfect  grant ; 
and  that  in  every  case  the  copy  of  the  concession  offered  in 
evidence  is  certified  by  the  same  person,  Thomas  de  Aguilar. 

"  Alvarez  states  that  all  the  original  concessions  made  by 
the  governors  were  deposited  in  the  office  of  the  secretary, 
whose  duty  it  was  at  the  time  of  making  the  concession  to 
furnish  a  certified,  copy  of  it  for  the  grantee.  That  this  of- 
fice was  held  from  1809  until  1821  by  Thomas  de  Aguilar. 
That  the  original  royal  or  real  titles  were  signed  by  the  gov- 
ernor, and  deposited  in  the  office  of  the  escribano  or  notary 
of  government,  who,  in  like  manner,  furnished  the  grantee 
with  a  certified  copy  of  his  grant. 

"  Now,  it  is  worthy  of  remark  that  not  a  single  instance  has 
occurred  in  the  investigation  of  the  land  claims  of  the  coun- 
try where  a  claimant  has  presented  a  copy  of  the  grant  certi- 
fied by  the  escribano,  in  which  the  original  grant  was  not 
found  on  examination  in  the  public  archives ;  and  yet  that  so 
many  and  such  important  cases  should  be  presented  under  the 
certified  copies  given  by  Thomas  de  Aguilar,  for  which  no 
original  can  be  found. 

"  It  has  been  attempted  to  explain  this  circumstance,  by 
the  fact  that  the  perfect  grants  or  real  titles  were  drawn  and 
signed  on  the  protocols  of  the  notary,  and  that  they  were 
afterward  bound  in  books,  which  rendered  them  less  liable  to 
be  mislaid  and  lost  than  the  concessions  which  were  merely 
tied  up  in  bundles.  But  it  is  a  fact  well  known,  that  two- 
thirds  of  these  original  complete  titles  are  still  remaining  in 
the  sheets  on  which  they  are  described  by  the  witness  to 
have  been  drawn ;  and  the  difference  in  the  correspondence 
between  the  originals  and  the  copies  from  the  two  offices,  can 
only  be  accounted  for  by  the  difference  in  the  fidelity  and  in- 
tegrity of  the  two  offices  by  whom  the  originals  were  kept, 
and  the  copies  certified." 


35O  HISTORY   OF   THE   SUPREME   COURT 

General  Call  then  went  on  to  point  out  "  that  the  remark- 
able difference  in  the  quantity  of  land  contained  in  the  real 
titles  given  by  Governor  White,  and  that  contained  in  the 
certified  copies  of  concessions,  said  to  have  been  made  by  him, 
is  worthy  of  consideration,  and  goes  far  to  sustain  the  belief 
that  there  never  were  any  originals  in  those  cases."  Call 
continued : 


Why  Had  the  Claims  Been  Held  Back? 

"  But  if  these  large  concessions  are  genuine  —  if  they  were 
issued  in  1794,  1809,  1810  and  1811,  according  to  their  respec- 
tive dates,  why,  permit  me  to  ask,  were  they  not  matured  into 
real  titles  under  the  government  of  Spain?  Were  these  con- 
cessions of  256,000  and  368,644  acres  of  so  little  importance 
as  to  be  neglected  by  the  claimants,  or  were  they  not  sensible 
of  the  necessity  of  having  their  titles  confirmed? 

"  Some  of  them,  at  least,  appear  to  have  been  sufficiently 
apprised  of  this  necessity,  for  we  find  the  same  Arredondo 
and  the  same  Miranda,  who  now  claim  under  these  large  con- 
cessions, applying  for  and  obtaining  confirmations  of  titles 
for  tracts  of  four,  five,  and  six  hundred  acres,  so  late  as  the 
years  1820  and  1821,  as  will  be  shown  by  reference  to  docu- 
ment marked  B.  These  parties  knew  full  well,  that  under 
the  laws  and  ordinances  of  Spain,  and  under  the  practice  and 
usage  of  that  government,  the  concession,  if  legal  and  proper, 
gave  them  but  the  inception  of  right,  and  that  until  consum- 
mated by  a  '  real '  title,  they  could  enjoy  no  permanent  estate 
in  the  land.  Most  of  them  were  inhabitants  of  the  town  of 
St.  Augustine,  the  seat  of  the  provincial  government,  and 
must  have  been  apprised  for  several  years  of  the  anticipated 
transfer  of  the  province  to  the  United  States. 

"  From  the  character  of  these  claims,  and  the  conduct  of 
the  claimants,  it  is  difficult  to  avoid  one  or  two  conclusions, 
both  of  which  are  equally  fatal  to  the  interest  of  the  parties. 


FURTHER    COURSE   OF    COURT    UNDER    MARSHALL  351 

First,  that  they  are  spurious,  or  secondly,  that  their  confirma- 
tion was  denied  by  the  Spanish  authorities.  For  we  cannot 
believe  that  individuals  holding  these  large  concessions  would 
neglect  to  apply  for  their  confirmation,  at  a  time  when  they 
were  soliciting  and  obtaining  perfect  titles  for  small  tracts,  of 
so  much  less  importance." 


The  Mitchell  Decision  Denounced. 

Then  proceeding  to  show  how  "  the  grossest  frauds  on  the 
government  may  be  rendered  successful,  by  concealing  or  de- 
stroying the  originals,"  General  Call  went  on : 

"  There  are  certainly  many  reasons  why  these  copies  should 
not  be  received  in  evidence,  until  the  absence  of  the  originals 
shall  have  been  satisfactorily  accounted  for.  Until  this  is 
done,  the  rules  of  evidence  forbid  them  to  be  received  and  a 
departure  from  those  well-known  and  salutary  rules  would 
open  a  door  for  fraud,  not  to  be  closed,  so  long  as  the  gov- 
ernment has  one  acre  of  unappropriated  land  in  Florida. 

"  What  other  security,  I  would  ask,  can  the  government 
have  against  spurious  and  pretended  claims,  than  to  require 
the  production  of  the  original  grant,  or  that  its  absence  should 
be  satisfactorily  accounted  for? 

"  Forgeries  may  be  detected  by  comparison,  and  proof  of 
genuine  signatures;  but  as  it  was  the  duty  and  practice  of 
Thomas  de  Aguilar  to  give  copies  of  all  concessions  made  by 
the  governor  to  the  claimant,  if  he  has,  since  the  transfer 
of  the  country  to  the  United  States,  been  induced  to  give  cer- 
tified copies  of  concessions,  when  there  are  no  originals,  what 
check  or  control  can  be  placed  on  his  fraudulent  designs, 
and  those  with  whom  he  may  have  been  associated,  than  to 
require  that  the  originals  shall  be  found  in  the  office  where  the 
copy  professed  to  have  left  them,  or  proof  that  they  once  ex- 
isted there,  and  that  they  have  since  been  lost  or  destroyed  ? 


352  HISTORY   OF   THE    SUPREME    COURT 

"  In  reply  to  that  part  of  your  letter  which  requires  me  to 
state  whether,  in  my  opinion,  these  cases,  or  any  of  them,  are 
embraced  by  the  decisions  already  given  by  the  Supreme  Court 
of  the  United  States ;  in  candor  -I  must  say,  that  as  bad  as  I 
believe  these  cases  to  be,  yet  I  consider  the  worst  of  them 
little  inferior  in  law  or  equity  to  most  of  them  already 
decided  by  the  court;  and  that  the  principle  settled  in  the 
case  of  Mitchell  and  others  vs.  the  United  States,  will,  if 
applied,  cover  all  the  objections  which  can  be  presented  to 
the  confirmation  of  any  of  the  cases  now  depending  in  any  of 
the  courts  of  the  Territory,  except  in  those  cases  where  the 
land  is  situated  within  the  Indian  boundary,  on  which  I  shall 
hereafter  offer  a  few  remarks.  I  consider  that  the  badges  of 
fraud  were  as  strongly  developed  in  the  cases  of  Mitchell  and 
others  as  they  are  in  the  worst  of  the  cases  contained  in  ab- 
stract No.  2. 

"  So  far  as  the  question  of  evidence  is  involved,  there  is 
an  exact  correspondence  between  that  case  and  those  which 
depend  upon  certain  copies  of  concessions. 

"  In  the  case  of  Mitchell  and  others,  the  copies  on  which 
the  suit  was  founded  were  taken  from  copies  certified  to  by 
Pablo  de  Lorin,  secretary,  and  Maximilian  de  Maxent,  lieu- 
tenant governor,  of  West  Florida.  In  the  cases  now  depend- 
ing in  court,  the  copies  are  certified  by  Thomas  de  Aguilar, 
secretary  of  the  government  of  East  Florida.  In  both,  the  cer- 
tificate states  that  the  original  remains  in  the  archives.  The 
archives  of  East  and  West  Florida,  and  the  archives  of  Cuba, 
have  been  diligently  searched,  and  no  original  is  to  be  found. 
Jn  both,  the  absence  of  the  originals  were  entirely  unaccounted 
for." 

As  to  the  acceptance  of  these  certified  copies  by  the  Su- 
preme Court  of  the  United  States,  as  sufficient  proof  of  the 
originals,  General  Call  wrote :  "  One  would  suppose,  from 
the  description  of  these  certified  copies,  thus  given  by  the 
court,  that  they  were  notarial  acts,  or  '  authentic  acts  ' ;  that 


FURTHER   COURSE  OF   COURT    UNDER   MARSHALL  353 

they  were  executed  by  a  notary  public,  with  all  the  forms  and 
ceremonies;  and  that  they  were  entitled  to  all  the  faith. and 
credit  given  to  such  instruments  by  the  civil  law.  .  .  . 
Now  it  will  be  shown,  by  an  examination  of  each,  that  the 
originals  were  not  notarial  instruments.  That  they  were  not 
written  on  a  notarial  protocol,  or  countersigned  by  a  notary 
public.  Nor  was  any  one  of  the  copies  taken  from  the  orig- 
inals by  a  notary  public,  and  signed  and  certified  by  him  as 
such.  On  the  contrary,  they  are  all,  both  originals  and  copies, 
what  are  termed  in  the  civil  law  private  acts,  and  entitled  to 
no  faith  or  credit  whatever."  95 

Yet  on  the  sole  strength  of  these  alleged  copies,  the  Su- 
preme Court  of  the  United  States  validated  then  and  event- 
ually the  defrauding  of  2,711,290  acres  of  the  best  lands  in 
Florida,  and  tens  of  millions  of  acres  elsewhere. 

Death  of  Chief  Justice  Marshall. 

But  when  these  penetrating  criticisms  appeared,  Chief  Jus- 
tice Marshall  was  no  more.  He  died  on  July  6,  '1835,  aged 
eighty  years. 

The  funeral  ceremonies  were  impressive,  the  eulogies  im- 
posingly laudatory.  The  legacy  that  he  bequeathed  to  the 
governing  class  was  of  incalculable  value :  precedents  estab- 
lished by  him  have  been  applied  and  amplified  ever  since  as 
organic  principles  of  law  and  government,  and  the  omnipotent 
authority  of  the  Supreme  Court  of  the  United  States,  so  suc- 
cessfully asserted  by  him,  has  not  only  remained  unimpaired, 
but  has  been  extended  even  to  the  point  of  declaring  that 
while  conquered  colonies  are  subject  to  the  authority  of  the 
United  States,  the  Constitution  does  not  apply  to  them. 

As  a  jurist,  John  Marshall's  fame  has  been  overdrawn  and 
lavishly  colored.  It  is  in  his  capacity  of  judicial  dictator  that 

95  The  above  are  integral  and  consistent  parts  of  the  whole  of  Gen- 
eral Call's  voluminous  critical  review.  The  full  paper  is  set  forth  in 
Document  No.  1348,  "  American  State  Papers :  Public  Lands,"  Vol.  VIII. 


354  HISTORY   OF  THE   SUPREME   COURT 

he  should  be  noted,  and  stand  supreme;  of  monarchical  and 
other  dictators  the  world  has  seen  a  plenitude,  but  of  the 
juridical  dictator  who  could  at  will  annul  and  create  law  in  a 
supposed  republic,  the  like  of  John  Marshall  had  never  before 
been  known.  For  thirty-four  years  he  had  dispensed  his  law, 
the  never-varying  purpose  and  end  of  which  was  always,  and 
under  all  circumstances,  justification  of  methods  and  policies 
benefiting  the  governing  class  of  wealth  and  po.wer.90 

90  One  of  the  suggestive  expressions  of  opinion  on  Marshall's  career 
was  that  of  William  Leggett,  a  founder  of  the  Equal  Rights  Party  and 
co-editor  with  William  Cullen  Bryant  of  the  New  York  Evening  Post. 
When  Marshall  died,  the  New  York  Evening  Post,  on  July  28,  1835, 
published  an  editorial  by  Leggett.  ".  .  .  Few  things,"  wrote  Leggett, 
"  have  ever  given  us  more  disgust  than  the  fawning,  hypocritical  and 
unqualified  lamentations  which  are  poured  out  by  the  public  press  on 
the  demise  of  any  conspicuous  political  opponent.  Of  the  man  whom 
the  day  before  it  denounced  in  terms  of  the  most  unmeasured  bitter- 
ness, let  him  but  shuffle  off  his  mortal  coil,  and  the  next  day  it  is  loud 
in  indiscriminating,  unlimited  praise.  .  .  ."  Leggett  then  went  on 
to  say  that  although  tribute  should  be  paid  to  Marshall's  many  esti- 
mable qualities  and  powers  of  mind,  yet  "  we  cannot  but  experience 
joy  "  that  the  chief  place  in  the  supreme  tribunal  of  the  Union  would 
be  no  longer  filled  by  such  a  judge  as  Marshall,  and  that  no  grief 
would  be  felt  "  that  the  cause  of  aristocracy  has  lost  one  of  its  chief 
supports." — "A  Collection  of  the  Political  Writings  of  William  Leg- 
gett" (Edition  of  1840),  Vol.  II:  3-7. 


CHAPTER  IX 
THE    SUPREME    COURT    UNDER    CHIEF    JUSTICE    TANEY 

With  Marshall's  death,  and  with  the  appointment  of  his 
successor,  an  immediate  transformation  of  the  Supreme  Court, 
in  one  constituent  respect,  was  witnessed.  The  functions, 
authorized  or  self-arrogated,  of  that  tribunal  remained  the 
same;  the  ancient  juridical  authorities  of  legal  maxims  were 
subjected  to  no  new  interpretation ;  the  fundamentals  of  law 
continued  in  force  unaltered.  The  transformation  was  not 
one  of  the  character  or  power  of  the  institution ;  it  was*  purely 
one  embodying  the  divergent  views,  on  a  particular  question, 
of  new  members  from  those  held  by  the  old  body. 

From  the  organization  of  the  Supreme  Court,  its  incum- 
bents were  punctiliously  and  critically.,  chosen,  not  primarily 
because  of  their  knowledge  of  law,  but  with  the  certain  antici- 
pation that  they  would  apply  law  in  consonance  with  the  creed 
and  interests  of  the  divisions  of  the  class  from  which  their 
appointments  came.  Their  selection  was  not,  in  the  intrinsic 
sense,  a  judicial  appointment;  political  considerations  alone 
determined  who  was  to  go  on  the  Supreme  Court  Bench.  But 
politics  was  not  an  idle  formula,  neither  was  it  an  inane 
pastime.  It  was  a  definite,  virile  struggle  between  classes, 
or  groups  of  classes,  for  power ;  behind  the  ceaseless  reach 
for  power  lay  the  stimuli  of  mixed  personal  and  class  inter- 
ests. Superficially,  those  political  conflicts  were  invested  with 
an  impressive  show  of  principle  or  patriotism.  But  analyz- 
ing them,  in  a  large  sense,  they  were  nothing  less  than  wars 
for  the  perpetuation  of  the  interests  of  one  class,  and  the  sup- 
pression of  those  of  another.  But  while  the  propertied  class, 

355 


356  HISTORY   OF   THE   SUPREME   COURT 

in  its  entirety,  was  warring  to  retain  and  extend  its  power,  it, 
at  thfe  same  time,  had  its  own  internal  wars  which  resolved 
themselves  into  furious  conflicts  in  the  political  arena. 

Far  from  being  an  harmonious,  compact  whole,  the  capital- 
ist class  was  sundered  into  various  contending  divisions. 
Each  of  these  fought,  if  not  for  political  supremacy,  at  least 
for  political  advantage.  On  the  general  issue  of  government 
representing  the  propertied  classes,  all  of  these  divisions  were 
agreed.  All  believed  in  a  government  the  personnel  of  which 
recognized,  advocated  and  enforced  the  superiority  of  prop- 
erty rights  and  the  preeminent  claims  of  property  interests. 
All  were  united  in  holding  that  government  should  encourage 
the  development  of  capital,  and  all  opposed  the  proposition 
that  government  should  exercise  any  solicitude  for  those  in- 
capable of  taking  care  of  themselves  —  meaning  the  working 
class. 

But  united  on  this  point,  the  capitalist  class  was  in  other  re- 
spects torn  by  acute  dissensions.  The  native  manufacturers  ar- 
rayed themselves  against  the  native  importers,  complaining 
of  the  privilege  allowed  to  the  importers  of  long-time  credit 
in  paying  customs  dues.  By  what  right,  protested  the  manu- 
facturers, were  these  "  overgrown  capitalists "  permitted 
practically  to  use  public  funds  as  their  private  capital?  The 
importers  also  profited  from  free  trade  or  low  tariff;  the  na- 
tive manufacturers  agitated  for  a  high  protective  tariff. 
Among  the  bankers  a  similar  conflict  developed.  The  own- 
ers of  the  State  banks  fiercely  denounced  the  monopoly  of 
Government  deposits  held  by  the  Bank  of  the  United  States. 
In  1816,  there  were  two  hundred  and  forty-six  of  these  State 
chartered  banks;  by  1837,  fully  eight  hundred  were  in  opera- 
tion. 

State  Bank  Interests  Triumph. 

The  long  struggle  for  political  control  of  the  banking  situa- 
tion resulted  in  victory  for  the  State  banks  when  Jackson  was 


UNDER   CHIEF   JUSTICE   TANEY  357 

elected  President.  Immense  sums  of  money  were  expended 
by  the  Bank  of  the  United  States  in  the  effort  to  influence  the 
Presidential  election,  but  the  Jackson  forces,  by  making  it 
appear  that  the  struggle  was  one  between  democracy  and  the 
monied  aristocracy,  won  the  support  of  a  large  part  of  the 
working  class.  Yet 'in  fact,  as  the  workers  recognized  soon 
after,  the  contest  was  merely  one  between  two  capitalist  di- 
visions; the  State  banks  had  committed  abuses  and  frauds  as 
great  as  those  of  the  Bank  of  the  United  States ;  and  when 
the  State  banks  succeeded  in  wresting  political  control  from 
the  Bank  of  the  United  States,  it  simply  signified  that  one  set 
of  capitalists  had  been  deposed  to  make  way  for  another. 

Among  the  initiated,  and  even  among  a  considerable  section 
of  the  reading  public,  the  prestige  of  the  Supreme  Court  of 
the  United  States,  at  this  time,  was  not  high.  Its  decisions 
validating  land  frauds  of  surprising  magnitude  had  been 
freely  and  incisively  criticised.  Its  political  character  had. 
been  denounced,  and  its  usurpations  vehemently  assailed. 
President  Jackson  not  only  manifested  his  open  contempt  for 
two  of  its  decisions,  but  by  those  self-same  acts  he  proved 
that  Supreme  Court  decisions  affecting  national  interests  were 
not  binding  and  conclusive  unless  the  Executive  chose  to  con- 
sider them  so.  In  a  case  involving  the  title  to  certain  lands  in 
Georgia  claimed  by  both  the  Cherokee  tribe  and  the  white  set- 
tlers, Marshall,  in  1832,  decided  against  the  white  settlers. 
"  John  Marshall,"  retorted  Jackson,  "  has  delivered  his  opin- 
ion, now  let  us  see  him  enforce  it."  Which  assuredly  Mar- 
shall could. not,  since  the  physical  force  necessary  to  support 
the  Supreme  Court's  edict  could  only  be  supplied  by  the 
Executive.  Jackson,  in  another  case,  demonstrated  how  Su- 
preme Court  decisions  could  be  reduced  to  utter  sterility. 
When  in  vetoing  a  bill  rechartering  the  Bank  of  the  United 
States,  his  attention  was  called  to  the  decision  of  the  Supreme 
Court  that  the  power  of  Congress  to  charter  a  national  bank 
was  constitutional,  he  announced  that  he  would  disregard  that 


358  HISTORY   OF   THE    SUPREME    COURT 

decision  on  the  ground  that  the  Supreme  Court  had  no  right 
to  dictate  to  a  coordinate  branch  of  government.  And  he  did 
disregard  it. 

But  while  ignoring  those  decisions  Jackson  was  filling  the 
Supreme  Court,  as  fast  as  vacancies  occurred,  with  men  op- 
posed to  the  Bank  of  the  United  States.  He  had  already 
appointed  McLean  and  Baldwin ;  on  January  9,  1835,  he  ap- 
pointed James  Moore  Wayne  to  succeed  Justice  Johnson. 
Wayne,  who  was  born  in  Savannah,  Georgia,  in  1790,  had 
served  in  the  Georgia  Legislature,  had  been  Mayor  of  Savan- 
nah, a  State  judge,  and  had  been  a  member  of  Congress  from 
1829  to  1835. 

The  dictum  that  the  Supreme  Court  of  the  United  States 
is  an  institution  superior  to  criticism  was  not  accepted  in  that 
era.  Judges,  lawyers  and  laymen  frequently  dissected  and 
exposed  its  decisions,  and  attacked  its  arrogations  of  power. 
Nor  were  they  summoned  for  contempt.  Thus,  of  the  nu- 
merous criticisms  publicly  made,  it  may  be  advisable  to  quote 
here  remarks  by  Robert  Rantoul,  one  of  the  most  prominent, 
liberal  and  respected  attorneys  of  the  time.1  These  are  some 
extracts  from  his  oration  at  Scituate,  Massachusetts,  July  4, 
1836: 

".  .  .  Why  is  an  ex  post  facto  law,  passed  by  the  Legis- 
lature, unjust,  unconstitutional  and  void,  while  Judge-made 
law,  which,  from  its  nature,  must  always  be  ex  post  facto,  is 
not  only  to  be  obeyed,  but  applauded?  Is  it  because  Judge- 
made  law  is  essentially  aristocratical  ?  .  .  . 

1  At  the  instigation  of  the  boot  and  shoe  manufacturers,  the  officials 
of  Boston  brought  an  action  against  the  Boston  Journeymen  Boot- 
makers' Society,  on  the  ground  that  it  was  a  conspiracy.  The  lower 
court  ruled  against  the  union,  and  the  jury  returned  a  verdict  of  guilty. 
But  on  appeal  in  the  Supreme  Court  of  Massachusetts,  Rantoul,  by 
an  able  argument,  had  that  verdict  reversed.  He  successfully  argued 
that  the  old  English  law  of  the  time  of  Queen  Elizabeth,  making  it  a 
criminal  offense  to  refuse  to  work  for  certain  wages  had  not  been 
specifically  adopted  as  common  law  in  the  United  States  after  the 
Revolution. —  See,  Metcalf's  Reports  (Supreme  Court  of  Mass.),  Vol. 
IV:  in. 


UNDER    CHIEF   JUSTICE   TANEY  359 

"  Judge-made  law  is  ex  post  facto  law,  and  therefore  un- 
just. An  act  is  not  forbidden  by  the  Statute  law,  but  it  be- 
comes, by  judicial  decision,  a  crime.  A  contract  is  intended, 
and  supposed  to  be,  valid,  but  it  becomes  void  by  judicial 
construction.  The  Legislature  could  not  effect  this,  for  the 
Constitution  forbids  it.  The  Judiciary  shall  not  usurp  leg- 
islative power,  says  the  Bill  of  Rights ;  yet  it  not  only  usurps, 
but  runs  riot  beyond  the  confines  of  legislative  power. 

"Judge-made  law  is  special  legislation.  The  judge  is  hu- 
man, and  feels  the  bias  which  the  coloring  of  the  particular 
case  gives.  If  he  wishes  to  decide  the  next  case  differently, 
he  has  only  to  distinguish,  and  thereby  make  a  new 
law.  .  .  ."2 

If  this  was  revealing  the  secret  springs  of  the  judicial  mech- 
anism, it  was  only  disclosing  what  the  judges  were  themselves 
publishing  by  their  own  acts. 

Roger  B.  Taney's  Career. 

President  Jackson  appointed  Roger  B.  Taney,  of  Mary- 
land, as  Chief  Justice  to  succeed  Marshall.  As  an  attorney 
and  office  holder,  Taney  had  been  associated  with  all  three 
of  the  dominant  divisions  of  the  ruling  class  —  the  slave 
power,  the  State  banks,  and  the  cliques  of  land  appropriators 
and  speculators.  By  interest  as  well  as  by  bias  his  support 
of  all  three  was  assured.  But  considerable  religious  preju- 
dice was  displayed  against  him,  because  of  his  Roman  Cath- 
olic faith. 

He  was  born  in  the  year  1777.  "  My  father,  Michael 
Taney,"  he  wrote,  "  owned  a  good  landed  estate,  on  which 
he  always  resided,  and  slaves."  His  father's  plantation  was 
on  the  banks  of  the  Patuxent  River,  in  Maryland.  "  My 
mother,"  he  went  on,  "  was  the  daughter  of  Roger  Brooke, 
who  owned  a  large  landed  estate  on  Battel  Creek,  directly 

?  "  American  Jurist,"  Vol.  XVI :  229-230, 


360  HISTORY    OF    THE    SUPREME    COURT 

opposite  to  that  which  belonged  to  my  father."  3  Admitted 
to  the  bar  in  1799,  Taney  was  elected  to  the  Maryland  Leg- 
islature, in  which  he  served  a  year.  His  marriage,  in  1806, 
to  Anne  Key,  a  sister  of  Francis  Scott  Key,  enlarged  his 
circle  of  influential  connections ;  Taney  and  Key  had  been 
law  students  together  at  Annapolis,  and  Mrs.  Key's  sister  was 
the  wife  of  Judge  Nicholson,  Chief  Justice  of  the  Baltimore 
Court,  and  one  of  the  Judges  of  the  Court  of  Appeals  of 
Maryland.  In  1816,  Taney  was  elected  to  the  Maryland  Sen- 
ate, and  in  1827  Attorney-General  of  Maryland. 

Both  Taney  and  his  brother-in-law  were  personally  inter- 
ested in  State  banks,  and  were  attorneys  for  them.  Key  rep- 
resented the  Bank  of  Columbia,  the  Bank  of  the  Metropolis 
of  Washington,  and  other  banks.*  Taney  was  one  of  the 
principal  owners  of  the  Frederick  County  Bank.  "  He  was, 
for  years,"  says  Tyler,  "  a  director  in  the  Frederick  County 
Bank,  and  hardly  ever  missed  a  meeting  of  the  board  of  di- 
rectors." 5 

Taney  was  also  not  only  a  considerable  stockholder  in  the 
Union  Bank  of  Maryland  —  one  of  the  largest  banks  in  the 
State  —  but  also  was  attorney  for  the  bank,  and  for  its  chief 
owners  individually.  His  interest  in  that  bank  caused  a  lively 
scandal  later,  when,  as  Secretary  of  the  Treasury,  Taney  fav- 
ored it  by  having  Government  funds  deposited  with  it.  His 
appearing  in  court,  as  an  attorney  for  the  Union  Bank  of 
Maryland,  was  frequent.  Taney  also  was  attorney  for  the 
Baltimore  Equitable  Society,  and  other  corporations.6  His 
practice  was  wholly  one  of  representing  large  banking  and  in- 
surance corporations,  powerful  landholders  such  as  Charles 

3  So  Taney  wrote  in  a  biography  of  himself  for  use  as  a  prefatory 
memoir  in  Tyler's  "Memoir  of  Taney"   (Edition  of  1872),  pp.  21-22. 
Tyler,  for  many  years  up  to  Chief  Justice  Taney's  death,  was  Taney's 
confidential  man,  and  was  selected  by  Taney  to  write  his  biography. 

4  See,  I  Harris  and  Gill's  Reports,  236-242 ;  I  Peters,  459,  etc. 
B  "  Memoir  of  Taney,"  102. 

6  See,  I  Harris  and  Gill's  Reports,  191,  295,  etc, 


UNDER    CHIEF   JUSTICE   TANEY  361 

Carroll,  and  shippers  and  other  capitalists  of  wide  corporate 
interests. 

The  large  landholders,  slave  owners  and  capitalists  of 
Maryland  had  early  associated  together  in  lobbying  bills 
through  the  Legislature  incorporating  them  as  owners  of  bank, 
insurance  and  other  charters.  As  early  as  1795,  Charles  Car- 
roll, Solomon  Etting,  Andrew  Buchanan  and  others  had  ob- 
tained a  charter  for  the  Marine  Insurance  Company,  with 
an  allowed  capital  of  $3OO,ooo.7  On  January  12,  1805,  Etting 
and  associates  had  secured  a  charter  for  the  Union  Bank  of 
Maryland,  with  an  empowered  capital  of  $3,000,000.  These 
men  were  indefatigable  promoters,  of  various  schemes  and 
corporations ;  among  other  enterprises  they  obtained  charters 
for  turnpike  companies,  and  a  charter,  in  1816,  for  the  Bal- 
timore Improvement  Company,  with  a  capital  of  $500,000,  to 
make  public  improvements  of  one  kind  or  another  in  the  city 
of  Baltimore.8 

Taney  was  Etting's  attorney  in  the  higher  courts.  In  one 
case,  where  he  appeared  for  Etting,  in  the  Supreme  Court  of 
the  United  States,  in  1826,  the  facts  developed  must  have 
been  of  exceeding  interest  to  the  members  of  the  Supreme 
Court.  In  1819,  the  very  ^year  in  which  they  had  declared 
the  Bank  of  the  United  States  a  good  and  Constitutional 
institution,  McCullough,  the  cashier  of  the  Branch  of  that 
Bank  at  Baltimore,  had,  in  collusion  with  other  officials  of 
the  bank,  stolen  (the  court  records  say  "misapplied")  the 
modest  sum  of  $3,497,700.  In  the  settlement  with  the  di- 
rectors of  the  Bank  of  the  United  States,  a  part  of  the  se- 
curity offered  by  McCullough  were  indorsements  by  sixteen 
merchants  of  Baltimore,  who  individually  bound  themselves 
for  $12,500  each.  Among  these  merchants  was  Etting.  He 
refused  to  pay  his  bond  on  the  ground  that  he  had  indorsed 

7  "  Laws  of  Maryland,"  Vol.  II,  Chapter  59. 

8  Ibid.,  1816-1818:  p.  215,  etc.     (Chap.  260.) 


362  HISTORY   OF   THE   SUPREME   COURT 

without    knowledge   of    McCullough's    thefts.     The    decision 
went  against  him.9 

At  the  same  time  Taney  was  one  of  the  attorneys  arguing, 
in  the  Supreme  Court,  for  the  interests  of  Charles  Carroll  of 
Carrollton.  It  was  an  action  brought  against  Carroll  by  the 
administrator  of  Louisa  Browning,  a  demented  daughter  of 
Lord  Charles  Baltimore.  The  father  of  Charles  Carroll  had 
received,  in  1711,  from  Lord  Baltimore  (great  grandfather 
of  Louisa  Browning),  a  grant  of  a  tract  of  ten  thousand  acres 
of  land,  in  consideration  of  a  yearly  quit  rent  of  £100  sterling 
in  silver  and  gold.  Louisa  Browning's  administrator  sued  to 
recover  the  amount  of  these  quit  rents.  Justice  Story  de- 
cided the  action  in  favor  "of  Carroll,  on  the  ground  that,  in 
1780,  the  Legislature  of  Maryland  had  abolished  quit  rents.10 
So  too,  it  may  be  remarked,  had  the  Legislature  of  Virginia 
confiscated  alien  estates,  but  that  had  not  prevented  John  Mar- 
shall from  getting  the  Fairfax  estate,  by  force  of  Justice 
Story's  own  decision  in  the  noted  case  of  Fairfax's  Devisee 
vs.  Hunter. 


His  Defense  of  the  Slave  Trader,  Gooding. 

One  of  the  most  noteworthy  of  Taney 's  cases  was  his  suc- 
cessful defense  in  the  indictment  of  the  slave  trader,  John 
Gooding. 

Baltimore,  as  we  have  said,  was  one  of  the  most  active 
ports  in  the  business  of  fitting  out  ships  for  the  slave  traffic, 
and  of  those  engaged  in  slave  snatching,  Gooding  was  one  of 
the  most  conspicuous  and  avaricious.  For  many  years  Good- 
ing had  been  promoting  various  illegal  undertakings.  He 
was,  for  instance,  one  of  the  leading  spirits  in  the  Baltimore 

9  Wheaton's    Reports,    Supreme    Court    of    the    United    States,    Vol. 
XI :  59- 

10  XI  Wheaton,  134-171.     It  was  in  this  case   (as  heretofore  noted) 
that  Justice  Duvall  did  not  sit,  because,  as  he  indited  on  the  records, 
he  was  a  landowner  in  Maryland, 


UNDER   CHIEF   JUSTICE   TANEY  363 

Mexican  Company,  organized  in  1816,  to  supply  General  Mina 
of  Mexico  with  the  means  to  fit  out  an  expedition  for  the 
purpose  of  driving  the  Spanish  from  control  of  Mexico.  The 
financing  of  General  Mina  was,  in  itself,  a  good  undertaking, 
but  no  high  purpose  animated  Gooding  and  his  associates; 
they  were  solely  concerned  with  deriving  an  enormous  per- 
centage on  their  investment,  if  General  Mina  succeeded.  But 
the  attempt  against  Spain  was  a  failure,  and  Mina  perished 
with  it.  Although  the  acts  of  the  Baltimore  Mexican  Com- 
pany were  admittedly  a  violation  of  the  neutrality  laws,  yet 
after  Mexico  had  achieved  its  independence  the  company 
made  a  claim  for  approximately  $355,000,  only  a  part  of 
which  they  had  actually  advanced.  This  was  one  of  the 
fraudulent  claims  adjusted  and  paid  by  the  Convention  be- 
tween Mexico  and  the  United  States  in  1839,  and  validated 
by  a  Supreme  Court  decision  in  i860.11 

Gooding  was  indicted  in  1824  at  Baltimore,  for  having 
violated  the  Slave  Trade  Act,  of  1818.  The  indictment 
charged  Gooding  with  having  fitted  out  vessels  called  the 
General  Winder  and  the  Pocahontas  as  slavers  to  kidnap  ne- 
groes in  Africa,  and  sell  them  in  Cuba.  The  Government 
produced  evidence  proving  that  Gooding  had  hired  Captain 
John  Hill  to  take  command  of  the  General  Winder,  and  that 
Hill  "  ordered  various  fitments  some  of  which  were  peculiarly 
adapted  for  the  slave  trade,  and  are  never  put  on  board  any 
other  vessels  than  those  intended  for  such  trade."  These 
chains  and  other  apparatus  were  taken  on  board  at  St.  Thomas, 
West  Indies.  The  General  Winder  brought  back  two  hundred 
and  ninety  negroes  from  Africa. 

Taney  and  Mitchell,  attorneys  for  Gooding,  appealed  to  the 
Supreme  Court  of  the  United  States  to  dismiss  the  indict- 
ment. They  made  no  serious  effort  to  attack  the  complete 
chain  of  evidence.  Although  they  tried  to  have  certain  evi- 

11  Howard's  Reports  (Supreme  Court  of  the  United  States),  Vol. 
XXIV:  319- 


364  HISTORY   OF    THE    SUPREME    COURT 

dence  excluded,  yet  their  main  arguments  were  entirely  con- 
fined to  advancing  seven  technical  objections  to  the  counts  in 
the  indictment.  That  Gooding's  guilt  was  proved  by  the  evi- 
dence was  clear.  It  was  equally  plain  that  on  the  merits  of 
the  case  they  could  not  get  him  free.  They,  therefore,  with 
specious  arguments  concentrated  their  assault  on  the  technical 
wording  of  the  indictment. 

In  delivering  the  court's  decision  Justice  Story  opened  with 
a  significant  warning.  "  We  take  this  opportunity,"  he  said 
in  his  decision  in  1827,  "  of  expressing  our  anxiety  lest  by 
too  great  indulgence  to  the  wishes  of  counsel,  questions  of  this 
sort  should  be  frequently  brought  before  this  court,  and  thus, 
in  effect,  an  appeal  in  criminal  cases  become  an  ordinary 
proceeding,  to  the  manifest  obstruction  of  public  justice,  and 
against  the  plain  intendment  of  the  acts  of  Congress."  This 
was  a  clear  enough  intimation. 

Certain  evidence  that  Taney  and  Mitchell  sought  to  have 
excluded  Justice  Story  declared  admissible.  And,  so  far  as 
an  agent  doing  a  thing  was  concerned,  Story  continued,  "  It 
is  the  known  and  familiar  principle  of  criminal  jurisprudence 
that  he  who  commands,  or  procures,  a  crime  to  be  done,  is 
guilty  of  the  crime,  and  the  act  is  his  act."  The  owner  did 
not  have  to  be  personally  present.  Nor  was  it  essential,  as 
Taney  had  argued,  that  to  constitute  a  fitting-out,  every  equip- 
ment necessary  for  a  slave  voyage  should  be  taken  on  board. 
Neither  was  it  necessary,  Story  said  further,  to  specify  the 
particulars  of  the  fitting  out. 

The  Indictment  "  Fatally  Defective." 

But,  Story  decided,  the  indictment  was  "  fatally  defective  " 
in  not  averring  that  the  vessel  was  fitted  out  or  sent  from 
within  the  jurisdiction  of  the  United  States,  and  that  the 
averment  in  the  indictment,  "  with  the  intent  that  the  said 
vessel  should  be  employed  in  the  slave  trade,"  was  also  "  fa- 


UNDER   CHIEF  JUSTICE   TANEY  365 

tally  defective  "  inasmuch  as  the  Slave  Trade  Act  of  Con- 
gress read,  "  with  intent  to  employ  "  etc.12 

This  decision  was  received  with  the  profoundest  disquie- 
tude by  the  opponents  of  slavery.  Deepfy  shocked  by  the 
revolting  horrors  of  the  slave  traffic,  they  had  long  sought 
to  implant  fear  in  those  engaged  in  it  by  having  some  of  its 
leaders  consigned  to  exemplary  punishment.  And  now  they 
found  themselves  balked  by  quibbles  and  twistings  and  fine- 
drawn technicalities;  now  they  saw  the  highest  court  in  the 
land,  while  admitting  the  guilt  of  one  of  the  most  notorious 
slave  traders  to  be  fully  proved,  yet  at  the  same  time  granting 
immunity  because  the  wording  of  the  indictment  did  not  suit 
fastidious  judicial  requirements.  They  agitated  bitterly  that 
whatever  were  the  professions  of  the  Supreme  Court,  the 
practical  effect  of  its  decisions  was  not  only  to  legalize  chattel 
slavery,  but  to  extend  a  full  and  authoritative  license  to  the 
slave  traders  to  continue  their  horrid  traffic  undeterred  by 
prospect  of  personal  punishment. 

Among  those  opposed  to  the  extension  of  chattel  slavery, 
or  favoring  the  emancipation  of  the  slaves,  Taney's  success- 
ful plea  for  Gooding13  was  looked  upon  as  a  discreditable 
and  disgraceful  piece  of  pettifoggery.  But  the  view  of  the 
slave  holders  and  slave  traders  was  exactly  the  reverse. 
They  conceived  the  highest  regard  for  Taney's  adroitness 
and  sharp  capacity.  His  success  in  this  case  was  one  of  the 
reasons  that  caused  them  to  push  him  forward  later  for  At- 
torney-General of  the  United  States,  Secretary  of  the  Treas- 
ury, and  then  for  the  Chief  Justiceship  of  the  Supreme  Court 
of  the  United  States. 

12  Case  of  U.  S.  vs.  Gooding,  XII  Wheaton,  460-468. 

13  Gooding   (for  some  reason  not  now  discoverable)    went  insolvent 
in   1829.     But  his  creditors,  by  virtue  of  a  decision,  in    1860,  of  the 
Supreme  .Court  under   Chief  Justice   Taney,   secured  that  court's  ap- 
proval of  the  legality  of  the  Baltimore  Mexican  Company's  claim,  not- 
withstanding it  was  made  in  admitted  violation  of  the  neutrality  laws. 
Gooding's  creditors  received  the  sum  of  $39,381.82,  that  being  the  one- 
ninth  share  arising  from  Gooding's  interest  in  the  company. 


366  .     HISTORY   OF   THE    SUPREME    COURT 

The  Case  of  the  "  Warren." 

Another  case  defended  by  Taney  and  having  its  own  pe- 
culiar aspects,  was  the  action  of  James  Sheppard  and  others 
against  Lemuel  Taylor,  James  A.  Buchanan,  John  Hollins  and 
others,  nearly  all  of  whom  were  incorporators  and  directors 
of  the  Union  Bank  of  Maryland.  This  fact  explained 
Taney's  appearance  as  one  of  the  attorneys  for  Taylor  et  al. 

Compactly  put,  the  facts  of  this  case,  as  narrated  in  the 
court  records,  were  as  follows: 

On  September  12,  1806,  the  ship  Warren,  six  hundred  tons, 
armed  with  twenty-two  guns,  sailed  from  Baltimore  with  a 
crew  of  one  hundred  and  twelve  officers,  seamen  and  appren- 
tices, and  a  cargo  valued  at  $300,000.  The  ostensible  voyage, 
as  set  forth  in  the  shipping  articles,  was  to  the  northwest 
coast  of  America,  thence  to  Canton,  and  back  to  the  United 
States.  Two  sets  of  instructions  were  given  by  Taylor, 
Buchanan,  Hollins  and  the  other  owners  —  one  the  nominal 
set  to  Captain  Sterrett;  the  other  private  and  confidential,  to 
Supercargo  Pollock,  who  was  the  only  person  aboard  know- 
ing the  real  purpose  and  destination  of  the  voyage. 

Upon  arriving  at  a  certain  latitude,  the  real  set  of  in- 
structions was  opened,  and  the  Captain  was  thus  informed  that 
Supercargo  Pollock  was  to  have  entire  control  of  the  voyage. 
The  account  in  the  records  of  the  Supreme  Court  of  the 
United  States  goes  on  to  say  that  from  that  time  the  ship 
"  proceeded  directly  for  the  coast  of  Chili,  to  prosecute  an 
illegal  and  smuggling  trade  with  the  Spanish  provinces,  on 
the  western  coast  of  South  America ;  all  trade  within  those 
provinces  being  notoriously  forbidden,  under  heavy  penalties, 
unless  conducted  under  a  license  from  the  crown  of  Spain. 

"  The  officers  and  crew  of  the  Warren  protested  against 
this  deviation  from  the  prescribed  voyage;  and  Captain  Ster- 
rett, from  disappointed  and  wounded  feelings,  disdaining  to  en- 
gage in  an  illicit  trade,  and  unwilling  to  expose  his  officers  and 


UNDER   CHIEF   JUSTICE   TANEY  367 

men  to  its  perils  and  consequences,  became  partially  deranged, 
and  shot  himself  as  the  Warren  was  doubling  Cape  Horn."  14 
Chief  Mate  Evans  succeeded  in  nominal  command,  but 
Pollock  kept  control,  and  steered  the  ship  for  Conception  Bay, 
Chili,  where  she  arrived,  after  a  voyage  of  one  hundred  and 
twenty  days  from  Baltimore.  At  Conception  Bay,  Pollock 
went  on  shore  to  arrange  matters  with  the  Spanish  officials. 
During  his  absence  Captain  Evans  and  the  commanders  of 
the  Spanish  men-of-war  fell  into  a  dispute ;  some  shots  were 
exchanged,  but  no  lives  were  lost.  The  crew  remonstrated 
against  the  illegal  traffic  into  which  they  were  forced,  and 
proposed  to  proceed  with  the  ship  on  the  voyage  for  which 
they  had  contracted,  leaving  Pollock  ashore.  Captain  Evans 
refused  to  enter  the  port  without  a  written  order;  this  was 
sent  to  him  and  the  Warren  sailed  into  the  port  of  Talcahu- 
ana. 

Pollock,  meanwhile,  had  been  acting  in  collusion  with  the 
Spanish  officials.  Furious  at  the  mutinous  conduct  of  the 
crew  he  planned  retaliation,  which  he  accomplished  in  this 
wise:  As  soon  as  Captain  Evans  went  ashore,  the  seamen, 
twenty  at  a  time,  were  taken  on  land  under  a  pretense  that 
their  depositions  were  required  relative  to  the  death  of  Cap- 
tain Sterrett.  The  moment  the  seamen  set  foot  on  shore 
they  were  seized  and  put  in  prison.  The  officers  and  appren- 
tices proposed  to  rescue  the  Warren  and  informed  Pollock 
of  their  purpose.  They  did  not  know  that  Pollock  and  the 
Spanish  officials  were  acting  together.  As  soon  as  Pollock 
heard  of  their  intention  he  had  his  and  Evans'  baggage  con- 
veyed ashore  and  Spanish  officers  took  off  the  ship's  rudder 
and  otherwise  disabled  her  from  sailing.  The  officers  and 
apprentices  of  the  Warren  were  arrested;  then  officers  and 
crew  "  were  ordered  to  Conception,  and  thence  were  marched 
to  various  prisons  and  dungeons,  and  suffered  captivity  from 
eight  months  to  four  years,  being  permitted  to  return  to  the 
14  V  Peters,  676-677. 


368  HISTORY   OF  THE   SUPREME   COURT 

United  States  at  various  periods.  The  apprentices  and  some 
of  the  officers  were  the  first  to  return ;  their  absence  from  the 
United  States  was  after  an  imprisonment  of  from  six  to 
eighteen  months."  15 

The  officers  and  seamen  in  bringing,  in  1810,  an  action  for 
their  wages,  contended  that  by  agreements  between  the  Span- 
ish Commandant  and  Pollock,  the  cargo  was  smuggled  ashore, 
and  that  by  order  of  the  Spanish  court,  the  vessel  and  cargo 
were  sold  and  the  proceeds  were  ordered  deposited  in  the 
king's  treasury,  subject  to  an  appeal  by  Pollock.  The  years 
dragged  on,  while  the  Spanish  red  tape  unwound.  In  1819, 
all  of  the  owners  of  the  Warren  curiously  became  insolvent, 
and  presently-  assigned  their  claims,  part  going  to  Robert 
Oliver,  part  to  the  Branch  of  the  Bank  of  the  United  States 
at  Baltimore,  and  another  part  to  the  Union  Bank  of  Mary- 
land at  Baltimore.  But,  as  a  matter  of  fact,  these  assign- 
ments were  held  in  trust  for  Taylor,  Buchanan,  Hollins  and 
others  of  the  original  owners. 

Powerful  political  influences  were  brought  into  action;  and 
taking  advantage  of  the  Florida  Treaty  of  1819,  the  owners 
of  the  assignments  pressed  their  claims  against  Spain  for  pay- 
ment for  the  confiscated  ship  and  cargo.  They  finally  re- 
ceived in  1824  a  total  of  $184,011.90  in  settlement. 

But  they  refused  to  pay  the  wages  due  to  the  officers  and 
seamen  of  the  Warren.  Certainly  the  demands  of  the  crew 
were  extremely  modest.  They  did  not  ask  redress,  as  they 
could  have  asked,  for  being  wheedled  into  signing  contracts 
under  false  pretenses.  They  did  not  demand,  as  they  were 
justly  entitled  to  do,  damages  for  their  long  imprisonment. 
They  simply  claimed  the  wages  due  them  from  the  time  that 
they  had  left  Baltimore  to  the  time  of  their  return,  to  the 
United  States,  deducting  such  advances  as  they  had  received. 

Taney  and  Wirt,  as  the  attorneys  for  the  banks  and  others, 
contested  their  claim  for  years,  arguing  that  the  indemnity 

i5V  Peters,  678. 


UNDER   CHIEF   JUSTICE   TANEY  369 

fund    received   by   the   assignees   was   not   liable    for    wages 
claimed.     In  the  lower  court,  the  assignees  won  the  case. 


Justice  Story's  Severe   Comments. 

By  an  unanimous  decision  however,  the  Supreme  Court  of 
the  United  States  in  January,  1831,  decided  in  favor  of  the 
officers  and  crew.  In  delivering  the  court's  opinion,  Justice 
Story  said  that  "  the  first  question  is  whether  in  point  of  fact, 
the  libellants  have  substantially  sustained  the  allegations  in 
the  libels  and  petition  in  respect  to  the  voyage ;  to  their  igno- 
rance of  the  intended  illicit  trade;  to  the  seizure  of  the  ship 
and  to  their  own  imprisonment  and  separation  from  it:  which 
are  necessary  to  maintain  their  claim  for  wages.  And  we 
are  of  opinion  that  the  evidence  upon  these  points  is  conclu- 
sive. Without  going  into  the  particulars,  it  may  be  said  that 
few  cases  could  be  presented  under  circumstances  of  more 
aggravation,  and  in  which  the  proofs  were  more  clear,  that 
the  seamen  were  the  victims  of  an  illicit  voyage,  for  which 
they  never  intended  to  contract,  and  in  which  they  had  no 
voluntary  participation."  10  The  Supreme  Court  reversed  the 
lower  court,  and  ordered  the  arrears  of  full  wages  paid,  but 
without  interest  except  from  the  time  of  the  bringing  of  the 
suit  against  the  assignees,  in  1825. 

Taney  then  moved  that  the  court  rescind  and  annul  its  de- 
cree. He  pleaded  that  the  case  be  reargued,  so  as  to  allow 
proof  of  expenses  incurred  by  the  owners  in  prosecuting  the 
claim  against  Spain  and  before  the  Florida  Commissioners, 
and  compensation  to  which  the  assignees  held  themselves 
entitled  for  their  services,  as  general  agents  for  those  inter- 
ested in  the  claim  fund.  If  these  and  others  of  Taney 's  pro- 
posals had  all  been  allowed,  hardly  anything  of  the  fund 
would  have  remained  to  pay  the  wages  due.  Most  of  them 
were  impudent  propositions,  and  the  court  so  considered 

10  Ibid.,  710. 


37O  HISTORY   OF   THE   SUPREME   COURT 

them.  The  only  two  it  allowed  were  those  permitting  a  two- 
and-a-half  per  cent,  for  services,  and  expenses  incurred  in 
prosecuting  the  claim  before  the  Florida  Commissioners.  The 
proposal  to  allow  expenses  in  pushing  the  claim  against  Spain 
was  curtly  refused.  Justice  Baldwin  dissented  in  the  item  of 
allowing  any  commission  to  the  assignees.17 

Taney  Appointed  U.  S.  Attorney-General. 

When  Taney  was  appointed  Attorney-General  of  the  United 
States  in  1831,  the  foes  of  chattel  slavery  were  perturbed  to 
a  point  approaching  consternation.  Here,  they  pointed  out, 
was  a  man,  the  son  of  a  slave  owner ;  perhaps  the  foremost 
advocate  of  the  interests  of  the  slave  traders ;  the  defender 
of  the  notorious  slaver  Gooding;  a  man  who  would  unhesi- 
tatingly pocket  his  fees  from  the  profits  of  the  kidnapping  of 
blacks;  a  man  who  would  plead  the  cause  of  smuggling  de- 
coyers  of  seamen  —  this  was  the  man  placed  in  charge  of  the 
civil  and  criminal  machinery  of  the  United  States  Govern- 
ment! 

But  if  the  opponents  of  chattel  slavery  were  dismayed,  the 
powerful,  influential  thousands  of  owners  of  the  State  banks 
were  very  well  pleased  at  his  appointment.  They  could  over- 
look his  profiting  from  cases  of  a  revolting  nature ;  they  could 
pass  by  such  an  implied  stinging  denunciation  as  even  Justice 
Story  felt  impelled  to  give  him  in  the  Warren  case.  These 
things  did  not  affect  them ;  it  can  be  said  without  exaggeration 
(as  the  records  so  abundantly  show),  that  virtually  all  of  the 
State  bankers  were  building  up  their  fortunes  by  consecutive 
fraud,  in  one  way  or  another.  To  them  Taney  appeared 
solely  in  the  capacity  of  a  shrewd,  wonderfully  astute  lawyer 
and  politician,  and  as  a  consistent  opponent  of  the  Bank  of 
the  United  States. 

As  Attorney-General  of  the  United  States,  Taney  became 

17  V  Peters,  717. 


UNDER   CHIEF   JUSTICE   TANEY  37! 

one  of  President  Jackson's  most  trusted  counselors.  Taney 
prodded  and  encouraged  Jackson  to  remove  the  Government 
funds  from  the  Bank  of  the  United  States.  When  William 
J.  Duane,  Secretary  of  the  Treasury,  refused  to  order  those 
funds  removed,  President  Jackson,  in  1833,  appointed  Taney 
in  Duane's  place.  Taney's  appointment  was  never  confirmed 
by  the  Senate,  but  he  proceeded  energetically  to  deprive  the 
Bank  of  the  United  States  of  Government  deposits.  The 
Senate  then  passed  a  resolution  inquiring  of  Taney  whether 
he  were  not  a  stockholder  in  the  Union  Bank  of  Maryland, 
which  was  one  of  the  banks  chosen  by  him  for  the  depository 
of  public  funds.  He  admitted  that  he  was,  but  asserted  (and 
with  truth)  that  he  had  obtained  the  stock  before  he  had 
selected  that  bank  as  a  depository  of  public  funds.18 

Taney  as  Secretary  of  the  Treasury. 

At  that  time,  and  for  a  considerable  period  later,  the  adminis- 
tration of  the  public  lands  was  under  the  jurisdiction  of  the 
Treasury  Department.  Neither  Secretary  of  the  Treasury 
Taney,  nor  his  successor,  Levi  S.  Woodbury  (who  in  1845 
became  an  Associate  Justice  of  the  Supreme  Court  of  the 
United  States),  interposed  any  serious  obstacle  to  the  great 
continuing  frauds  in  the  private  acquisition  of  the  public 
lands.  In  fact,  those  frauds  assumed  greater  proportions  un- 
der their  administration  than  had  previously  been  known. 
Personally  honest,  President  Jackson  was,  however,  pliable  to 
the  advice,  and  complaisant  to  the  schemes,  of  those  whom 
he  considered  his  political  and  personal  friends.  Surrounded 
by  an  adroit,  avaricious  and  unscrupulous  ring  of  politicians, 
both  in  and  out  of  Congress  and  in  his  cabinet,  he  was  used 
and  deceived. 

In  his  fight  to  abolish  the  Bank  of  the  United  States,  Jack- 

18  See,  Senate  Docs.,  First  Session,  Twenty-Third  Congress,  Vol. 
Ill,  Doc.  No.  238. 


372  HISTORY   OF   THE   SUPREME   COURT 

son  knew  precisely  what  his  aims  were,  and  suffered  no  one 
to  cross  or  frustrate  his  plans.  But  the  very  importance  of 
that  conflict  subordinated  other  matters  to  a  secondary  place 
in  his  mind;  his  aggressiveness  was  concentrated  upon  that 
one  object,  so  that  it  was  easy  for  the  schemers,  knowing 
that  fact,  to  proceed  under  shelter  of  it.  What  Jackson  con- 
sidered as  routine  details  of  administrative  functions  he  en- 
trusted to  the  heads  of  departments.  Always  having  access  to 
him,  they  could  influence  him  by  their  ready  explanations, 
their  insinuating  suggestions,  or  their  importunities  artfully  dis- 
guised under  cover  of  official  zeal.  When  serious .  charges 
were  made  that  great  predatory  schemes  were  being  consum- 
mated, they  could  even  produce  documents  and  reports  so 
skillfully  put  together  as  to  make  the  case  appear  not  only 
favorable  to  themselves  but  as  a  conspiracy  of  political  op- 
ponents to  discredit  him  and  them.  And  it  was  a  character- 
istic of  Jackson's  nature  that  no  matter  how  true  charges 
were,  he  would  loyally  stand  by  those  who  supported  him,  as 
much  from  disposition  as  from  political  expediency  in  not  car- 
ing to  give  political  capital  to  his  enemies,  and  reflect  upon  his 
own  administration  by  the  reprimand  or  discharge  of  his  fore- 
most adherents. 

The  Activity  of  the  Land  Appropriators. 

That  members  of  his  Cabinet  were  clandestinely  in  virtual 
or  tacit  collusion  with  the  cliques  of  land  speculators  is  clear 
from  the  documents.  Neither  Taney  nor  Woodbury  were 
suspected  of  sharing  in  the  proceeds,  or  of  the  vulgar  bus- 
iness of  taking  bribes.  Cass  had  benefited  from  land  spec- 
ulations,19 and,  as  we  have  seen,  was  not  above  accepting  large 

19  It  appears  by  Cass'  letter,  of  November  13,  1818,  to  the  Register 
of  the  Land  Office  at  Detroit,  that  he,  by  means  of  sundry  conveyances, 
had  become  possessed,  at  about  the  time  he  was  Governor  of  Michigan 
Territory,  of  several  valuable  tracts  of  land  in,  and  near,  Detroit. 
One  of  them  was  derived  from  an  old  French  claim.  In  another  case, 


UNDER    CHIEF   JUSTICE   TANEY  373 

sums  of  money  for  services  not  stated.  The  connivance  and 
collusion  of  high  officials  usually  took  subtle  although  often 
easily  traceable  forms.  For  instance,  Edward  Livingston 
had  been  counsel  for  claimants  of  certain  alleged  Spanish 
grants ;  and  he,  himself,  was  pecuniarily  interested,  as  we  shall 
describe  later,  in  the  great  fraudulent  Bastrop  claim,  cover- 
ing twelve  leagues  square  or  1,016,264  arpents  of  land  in 
Louisiana.  As  Secretary  of  State  of  the  United  States,  in 
1832,  Livingston  made  a  long  report  (which  appears  on  page 
495,  Vol.  VI,  "American  State  Papers:  Public  Lands"), 
strongly  urging  the  confirmation  of  those  claims. 

The  personal  friendships  of  eminent  officials,  as  well  as 
those  of  their  families,  were  also  delicately  worked  upon,  and 
very  often  indelicately ;  it  was  not  uncommon  for  lobbyists, 
contractors,  and  capitalists  having  some  favor  to  seek,  to  give 
expensive  presents  to  the  wives  of  officials.  Social  affiliations 
were  ingeniously  used,  and  even  more  dexterously  political 
ambition  and  capitalist  connections.  The  capitalists  promoting 
banking,  land,  trading  and  other  schemes  and  needing  special 
laws  or  official  favor,  were  either  in  politics  themselves,  or 
their  retainers  were ;  these  capitalists,  too,  were  those  who 
contributed  heavily  to  the  campaign  funds  of  the  political 
parties.  With  their  support  one  could  go  far  in  high  office; 
lacking  it,  the  prospect  of  advancement  either  to  political  or 
judicial  office  was  negligible.  Not  less  an  incentive  was  the 
sagacious  desire  on  the  part  of  the  official  for  future  security, 
if,  or  when,  he  returned  to  private  life. 

Most  of  the  ranking  officials  were  lawyers.  By  serving 
the  interests  of  corporations  and  individual  capitalists,  they 
were  insuring  for  themselves  the  certainty  of  a  large  and  lucra- 
tive practice  after  they  had  left  office.  Had  either  Taney  or 
Woodbury  been  opposed  by  the  powerful  land  interests,  fill- 

a  claim  was  confirmed  to  Cass,  although  but  a  slight  part  of  the  pur- 
chase price  had  been  paid  to  the  U.  S.  Government. — "  American  State 
Papers:  Public  Lands,"  Vol.  V:  107.  (Doc.  No.  598.) 


374  HISTORY   OF    THE    SUPREME    COURT 

ing  every  channel  of  influence  at  Washington,  they  would  not 
have  been  members  of  the  Cabinet ;  and  had  they  antagonized 
those  and  other  interests,  they  would  have  been  excluded  from 
confirmation  to  the  Supreme  Court  of  the  United  States, 
which  was  called  upon  continuously  to  decide  questions  and 
cases  affecting  the  ownership  of  many  millions  of  acres  of 
land. 

Imaginative  writers,  it  is  too  true,  have  sought  to  explain  the 
appointments  of  Supreme  Court  Justices  as  inspired  by  various 
exalting  motives  such  as  reward  for  individual  character,  learn- 
ing and  patriotic  services.  But  this  explanation  is  vague  and 
fallacious.  Economic  considerations  were  the  ruling  factor. 

Of  the  reasons  for  the  support  of  Taney  by  the  slave-own- 
ing and  State  bank  interests,  sufficient  details  have  been 
given.  It  is  necessary  now  to  give  an  adequate  account  of  the 
reasons  for  the  favor  of  the  third  division  of  the  capitalist 
class  then  controlling  the  Government  —  the  land  interests. 
In  the  process  of  presenting  these  facts  there  will  automatic- 
ally be  made  clear  three  other  factors  indispensable  to  the 
full  understanding  of  this  narrative.  The  great  further  de- 
velopment and  aggrandizement  of  the  newer  landed  class  (as 
distinguished  from  the  old  feudal  proprietary  landed  class) 
will  be  seen.  Second,  it  will  be  perceived  that  the  section  of 
the  landed  class  now  multiplying  its  ownership  of  land  con- 
sisted largely  of  the  Southern  slave  owners,  and  that  the  ter- 
ritory thus  fraudulently  acquired  was  precisely  that  in  which 
the  slavery  of  negroes  was  considered  profitable,  and  in 
which  it  could  be  extended.  Third,  the  facile  manner  in 
which  these  huge  areas  of  public  domain  were  obtained  under 
Taney  as  well  as  under  his  predecessors  and  successors  and 
his  subserviency  to  those  speculators  affords  a  direct  and 
striking  explanation  of  certain  decisions  later  rendered  by 
the  Supreme  Court  under  him  as  Chief  Justice  —  decisions 
presenting  a  few  spoliators  with  millions  of  acres  more  of 
the  public  domain. 


UNDER   CHIEF   JUSTICE   TANEY  375 

Indian  Tribes  Dispossessed  and  Cheated. 

By  the  year  1828,  the  Government  still  owned,  it  was  es- 
timated, about  801,000,000  acres  in  all.20  Of  this,  a  consider- 
able area  lay  in  the  Southern  States.  The  land  most  strongly 
attracting  the  attention  of  the  Southern  slave  owners  and 
politicians  as  well  as  Northern  capitalists  was  that  owned  by 
the  Indian  tribes,  the  Creeks,  Choctaws  and  Cherokees.  The 
land  occupied  by  these  tribes  in  Mississippi,  Arkansas  and 
adjacent  regions  was  known  to  be  the  finest  and  most  val- 
uable soil  for  cotton  raising  in  the  United  States.  In  its 
original  state,  without  any  improvements,  it  could  command 
at  once  at  least  $10  an  acre,  heavily  stocked  as  much  of  it  was 
with  timber. 

Every  effort  was  now  made  to  dispossess  the  Indian  tribes. 
Combinations  of  capitalists  were  formed  to  push  action  at 
Washington.  The  tribes  were  beguiled  into  making  treaties 
ceding  those  lands;  for  insignificant  sums  paid  in  merchan- 
dise or  money  or  both,  the  lands  were  ceded  to  the  Govern- 
ment. Nominally,  the  tribes  were  fairly  provided  for;  quite 
true,  they  received  only  a  few  cents  an  acre,  but  in  exchange 
for  their  collective  cession,  each  head  of  an  Indian  family 
was  to  get  a  section  of  land  and  each  child  a  certain  amount. 
We  shall  see  later  how  the  speculative  combinations  fraud- 
ulently induced  the  Indians  to  sign  away  these  claims.  The 
Government  announced  its  intention  of  auctioning  all  of  these 
ceded  lands  at 'the  minimum  rate  of  $1.25  an  acre.  This,  too, 
looked  fair;  apparently  the  poor  settler,  with  his  slight  re- 
sources, could  get  his  farm. 

But  what  actually  happened  was  very  different.  Nearly  all 
of  the  Registers  and  Receivers  of  the  various  land  offices 
were  not  only  in  collusion  with  the  speculative  combinations, 
but  were  secretly  interested  in  the  profits.  An  astonishingly 

20  "American  State  Papers:  Public  Lands,"  Vol.  V:  447.  (Doc. 
No.  639.) 


376  HISTORY   OF   THE   SUPREME   COURT 

large  number  of  the  Receivers  embezzled  public  funds  which 
they  or  their  capitalist  associates  used  in  the  land  operations.21 
At  the  different  local  land  offices  fraudulent  auctioning  was 
carried  on  unblushingly.  Sections  of  land  were  entered  on 
the  books  as  sold,  when  such  was  not  the  case;  the  object 
was  to  prevent  actual  settlers  from  buying  choice  lands  from 
the  Government,  and  to  allow  the  speculators  to  monopolize 
them,  so  that  the  settlers  would  have  to  buy  at  exorbitant 
prices  from  the  speculators.  Often  the  very  Registers  and 
Receivers  making  the  most  public  professions  of  opposition 
to  the  combinations  were  the  very  officials,  it  turned  out,  in- 
terested in  their  schemes  and  profits. 


Capitalist  Combinations  in  Operation. 

Of  one  of  such  combinations  the  Register  and  Receiver  of 
the  land  office  at  St.  Stephens,  Alabama,  reported  in  1827, 
to  the  Commissioner  of  the  General  Land  Office:  ".  .  . 
Its  extent,  in  point  of  numbers,  influence  and  capital,  puts  it 
beyond  the  ordinary  control  of  the  superintendents  [Govern- 
ment officers  at  sales].  .  .  .  By  the  exertion  of  a  few 
speculating  gentlemen,  a  coalition  was  formed  with  all  men 
of  tolerable  capital,  and  who  were  disposed  to  purchase  land. 
Each  deposited  a  given  sum,  and  became  pledged  to  act  in 
concert.  And,  in  this  manner,  competition  was,  in  a  consid- 
erable degree,  silenced.  .  .  ." zz 

With  a  fine  display  of  virtue,  Colonel  George  W.  Martin, 
Government  locating  agent  in  the  Choctaw  lands,  wrote  to 
Cass,  Secretary  of  War,  December  6,  1833,  that  many  ground- 
less claims  "  were  presented  at  my  office  with  much  address, 
and  urged  on  me  with  great  earnestness,  by  a  gentleman  (much 
honored  by  the  citizens  of  this  State)  and  who  ever  took  oc- 

21  See  detailed  list  later  in  this  chapter. 

22  "  American  State  Papers :  Public  Lands,"  Vol.  V :  376.     ("  Plan  to 
Prevent  Fraudulent  Combinations,"  etc.) 


UNDER    CHIEF   JUSTICE   TANEY  377 

casion  to  admonish  me  that,  should  his  claims  be  rejected, 
they  would  be  presented  to  a  higher  tribunal ;  leaving  me  to 
infer  that  he  would  bring  all  such  before  Congress,  or  perhaps 
first  the  war  department:  should  they  fail  at  the  department, 
thence  to  Congress,  etc.  Should  this  effort  at  fraud  be  per- 
severed in,  it  is  possible  that  it  may  be  effectual  at  Washing- 
ton, procuring  there  what  could  not  be  allowed  here.  Should 
it  be  so,  I  have  one  consolation  • —  my  skirts  are  clear."  23 

Always  it  was  the  same  recurring  note  in  these  communi- 
cations—  the  speculators  boasting  that  were  they  baffled  on 
the  spot,  they  would  succeed  at  Washington. 

But  Martin's  boasts  of  his  being  clear  of  misconduct  did 
not  correspond  with  what  U.  S.  Commissioner  G.  C.  Wool- 
ridge  reported  of  him,  that  he  had  been  guilty  of  "  outrageous 
acts "  in  allowing  the  speculators  to  monopolize  the  sale.24 
Nor  was  his  statement  sustained  by  a  U.  S.  Senate  Commit- 
tee, in  the  investigations  of  which  numerous  witnesses  testi- 
fied that  lands  had  been  located  for  Indians,  as  heads  of 
families,  when  in  fact  those  particular  Indians  had  no 
families;  and  that  the  number  of  fraudulent  locations  in  the 
Creek,  Choctaw  and  Chickasaw  reservations  was  enormous, 
The  witnesses  averred  that  the  proceedings  of  the  locating 
agents  were  thoroughly  corrupt.25 

Thus  the  process  of  the  capitalist  combinations  in  acquir- 
ing the  land  was  twofold  and  coordinated.  The  land  ceded 
by  the  Indians  was  fraudulently  bought  in  great  areas  at  auc- 
tion, and  the  land  located  for  Indians  in  exchange  for  that 
ceded  by  them,  was  even  more  flagrantly  secured. 

The  principal  and  largest  of  the  combinations  was  the 
Chochuma  Land  Company,  headed  by  such  potent  Southern 
politicians  and  capitalists  as  Robert  J.  Walker,  Thomas  G. 
Ellis,  Wiley  Davis,  Malcolm  Gilchrist,  William  Gwin,  Gen- 

23/feiW.,  Vol.  VII:  5.     (Doc.  No.  1230.) 

-*Ibid.,  Doc.  No.  1264. 

25  See,  Ibid.,  733-746,  etc.     (Doc.  No.  1335.) 


378  HISTORY   OF   THE    SUPREME    COURT 

eral  P.  C.  Chambliss  and  associates.26  The  ramifications  of 
this  company  extended  into  Congress,  the  Cabinet,  and  the 
courts.  Demanding  from  four  to  five  dollars  an  acre  from 
actual  intending  settlers,  the  land  officials  sold  to  this  com- 
pany, or  to  its  dummies,  whatever  tracts  it  wanted  for  a  trifle 
more  than  $1.25  an  acre.  It  was  testified  that  Samuel  Gwin, 
Register  of  the  land  office  at  Mount  Salus,  Mississippi, 
boasted  when  a  certain  purchase*  was  made  by  agents  of  the 
company,  "  That  land  will  bring  us  ten  dollars  an  acre."  2T 
Urged  to  join  the  company,  Colonel  Greenwood  Laflore 
spurned  the  offer  —  at  least,  so  he  testified.  "  I  refused  to 
do  so,  and  on  the  same  day  Gilchrist  (I  think),  .  .  .  ran 
some  of  the  land  I  wanted  to  nine  dollars  an  acre.  When  the 
overture  was  made  to  me  in  the  course  of  conversation  I  said 
I  considered  them,  the  speculators,  as  no  better  than  swin- 
dlers." -* 

Complaining  to  Congress  that  the  local  land  office  officials 
favored  the  speculators,  various  citizens  of  Mississippi  memo- 
rialized : 

".  .  .  Thus  were  your  petitioners  thrown  into  the  lion 
jaws  of  the  aristocratic  moneyed  speculators  .  .  .  and 
compelled  to  compete  with  those  lordly  mercenaries  who  in- 
vest the  land  offices.  .  .  .  Some  of  your  petitioners,  and 
many  other  settlers  on  the  public  lands,  were  prevented  by 
the  known  decision  of  the  officers  [land  register  and  re- 
ceiver] which  was  posted  on  the  door  of  the  land  office,  from 
proving  up  their  claims.  .  .  ."  The  petitioners  further 
remonstrated  that  by  various  false  promises  and  inducements, 
other  settlers  had  been  prevented  by  the  company  from  prov- 
ing their  claims.  Thus,  "  the  settlers  were  deprived  of  their 
labor,  and  their  families  turned  out  of  doors,"  without  any 
remuneration,  or  were  compelled  to  take  what  the  company 

20  See,  Docs.  No.   1254,   No.   1263,  and   No.   1264,  "  American   State 
Papers :  Public  Lands,"  Vol.  VII. 
27  "  Am.  State  Papers :  Public  Lands,"  Vol.  VII :  284. 
**Ibid.,  474. 


UNDER    CHIEF   JUSTICE   TANEY  3/9 

chose-  to  give.  "  Your  petitioners  are  unwilling  to  incur  the 
expense  of  a  long,  expensive  and  tedious  lawsuit  by  resort- 
ing to  the  judicial  tribunals  of  the  country  for  a  redress  of 
their  grievances,"  etc., —  and  therefore  looked  to  Congress  for 
relief.20 

Methods  of  Despoiling  the  Indians. 

Systematically  debauched  with  whisky  and  swindled,  the 
Indians  soon  found  their  lands  gone.  "  Many  of  them," 
wrote  Colonel  John  Milton  to  the  War  Department  from 
Columbus,  Mississippi,  on  July  15,  1833,  referring  to  the  In- 
dians, "  are  almost  starved  and  suffer  immensely  for  the 
things  necessary  to  the  support  of  life  and  are  sinking  in 
moral  degradation.  They  have  been  much  corrupted  by  white 
men  who  live  among  them,  who  induce  them  to  sell  to  as 
many  different  individuals  as  they  can  and  then  cheat  them 
out  of  the  proceeds.  .  .  ." 30  Luther  Blake  wrote  to  the 
War  Department,  from  Fort  Mitchell,  Alabama,  on  Septem- 
ber n,  1833,  ".  .  .  Many,  from  motives  of  speculation, 
have  bought  Indian  reserves  fraudulently  in  this  way  —  take 
their  bonds  for  trifles,  pay  them  ten  or  twenty  dollars  in 
something  they  do  not  want,  and  take  their  receipts  for  five 
times  the  amount.  .  .  ." 31  By  special  request  of  Pres- 
ident Jackson,  J.  H.  Howard  of  Pole-Cat  Springs,  Creek  Na- 
tion, sent  a  report,  February  i,  1834,  to  Jackson.  ".  .  . 
From  my  own  observation,"  he  wrote,  "  I  am  induced  to  be- 
lieve that  a  number  of  reservations  have  been  paid  for  at  some 
nominal  price  and  the  principal  consideration  has  been  whisky 
and  homespun.  .  .  ." 32 

That  these  reports  did  not  exaggerate,  and  at  the  same 
time  were  ineffectual,  is  evident  from  a  memorial,  signed  by 

2SIbid.,  609.     (Doc.  No.  1306.) 

30  Senate  Docs.,  First  Session,  etc.,  1835,  Vol.  VI,  Doc.  No.  425:  81. 

31  Ibid.,  86. 

32  Ibid.,  104.     The  above  are  merely  a  few  extracts  from  this  volumi- 
nous document. 


380  HISTORY   OF   THE    SUPREME    COURT 

several  hundred  citizens  of  Mississippi  and  adjacent  States, 
and  sent  to  Congress  in  1836.  After  recounting  the  terms  of 
the  Choctaw  Treaty,  that  each  Choctaw  proving  himself  the 
head  of  a  family  was  entitled  to  one  section  of  land,  and 
Choctaw  children  to  one-half  and  one-quarter  sections,  ac- 
cording to  their  ages,  the  petition  read  on: 

"  A  few  active,  enterprising  and  intelligent  speculators, 
discovering  the  opening  which  was  thus  presented  for  the 
acquisition  of  large  fortunes,  have,  by  agents  beyond  the 
Mississippi,  and  at  home,  produced  documents  purporting  to 
be  powers  of  attorney  from  Indians  to  select  lands,  and  trans- 
fer their  rights  to  lands  selected  and  supported  by  e.v  parte 
testimony  on  the  above-named  points,  suggested  in  the  Pres- 
ident's order  and  the  instructions  from  the  Department  of 
the  Treasury  and  of  War,  and  by  those  papers  have  caused 
to  be  set  apart  for  them  the  choicest  lands  in  the  country; 
sweeping  over  large  districts  inhabited  and  cultivated  by  per- 
sons who  settled  the  public  lands  on  the  faith  of  the  policy 
of  the  Government  .  .  .  that  their  homes  would  be  given 
them  at  a  reasonable  price,  unexposed  to  the  heartless  grasp 
of  the  voracious  speculator. 

"  To  the  alarm  of  your  memoralists,  these  claims  have  now 
amounted,  as  they  are  informed,  to  upward  of  three  thou- 
sand, which,  at  an  average  of  1,280  acres  each,  amount  to 
the  enormous  aggregate  of  three  millions  eight  hundred  and 
forty  thousand  acres;  and  the  said  speculators,  availing 
themselves  of  the  panic  which  these  operations  have  pro- 
duced, are  now  selling  out,  receiving  a  portion  of  the  price 
in  ready  money,  which  they  refuse  to  become  bound  to  re- 
fund, in  the  event  that  the  title  is  not  confirmed,  thus  secur- 
ing to  themselves  large  fortunes,  without  having  advanced 
to  the  Indians  one  cent  so  far  as  your  memorialists  are  in- 
formed and  believe. 

"  Your  memorialists  are  persuaded  that  not  more  than  one 
out  of  twenty  claims  are  founded  in  justice  and  equity,  and 


UNDER   CHIEF  JUSTICE   TANEY  381 

if  scrutinized  by  a  tribunal  sitting  in  the  vicinity  of  the  land 
offices,  with  competent  powers  to  reject  or  confirm,  and  to 
compel  the  attendance  of  witnesses,  those  honestly  claiming 
would  be  secure  in  their  rights,  and  a  most  stupendous  system 
of  fraud  on  the  Government  would  be  exposed  and  defeated; 
the  settlers  relieved  from  the  embarrassments  thus  brought 
on  them ;  and  Congress  saved  from  the  teasing  and  vexatious 
applications  of  false  claims  for  a  series  of  years  to  come."  33 

Such  remonstrances  brought  neither  redress  to  the  Indians, 
nor  relief  to  the  settlers;  they  were  pigeonholed  in  the  ar- 
chives of  Congress,  and  no  further  attention  was  given  them. 

The  Harvest  of  Fraud. 

Conditions  in  Arkansas  and  Louisiana  were,  it  seems,  fully 
as  scandalous.  A  treaty  made  in  May,  1828,  with  the  Chero- 
kee Indians  in  Arkansas,  provided  that  the  members  of  this 
tribe  were  to  get  allotments  of  land  in  other  regions  in  ex- 
change for  the  domain  ceded  by  them,  and  that  white  settlers 
whose  lands  were  in  the  new  reservation  were  to  receive  lands 
in  other  parts  for  lands  relinquished  by  them. 

Writing  to  the  land  office  registers  and  receivers  at  Bates- 
ville  and  Little  Rock,  Arkansas,  on  September  26,  and  Oc- 
tober 17,  1828,  Commissioner  Graham  of  the  General  Land 
Office  enclosed  several  communications  he  had  received  from 
"  respectable  gentlemen "  in  Arkansas.  One  correspondent 
complained  that  "  pieces  of  paper,  with-  twenty-one  years 
marked  on  them,  are  placed  in  the  shoes  of  children,  and  wit- 
nesses innumerable  can  be  found  who  will  swear  that  the 
said  persons  are  over  the  age  of  twenty-one  years,  and  en- 
titled to  a  donation."  The  speculators,  he  wrote,  were  reap- 
ing a  rich  harvest. 

The    other    correspondent    detailed    how    whites    who   had 

33  "American  State  Papers:  Public  Lands,"  Vol.  VIII:  431.  (Doc. 
No.  1414.) 


382  HISTORY   OF   THE    SUPREME   COURT 

never  relinquished  any  land,  and  had  never  had  any  to  re- 
linquish, thronged  forward  to  make  claims.  Not  more  than 
three  hundred  claims,  he  said,  could  have  originated  under  the 
law,  yet  not  less  than  1,500,  and  probably  2,000,  claims  would 
be  put  forward  for  confirmation.  "  The  Government,  then, 
by  its  vigilance  must  save  itself  from  being  swindled  out  of 
many  hundred  sections  of  choice  lands.  ;  .  .  It  has  been 
the  practice  to  take  the  evidence  in  the  country  before  jus- 
tices of  the  peace.  A  written  statement  is  drawn,  '  covering 
the  case '  and  the  willing  witness  gulps  it  down.  Minors, 
Indians,  transient  persons,  have  had  their  claims  most  sub- 
stantially made  out  on  paper.  It  is  sickening  to. think  of  the 
perjuries  that  have  disgraced  the  country,"  etc.,  etc.34 

V.  M.  Garesche,  appointed  as  Treasury  agent  to  investigate 
the  local  land  offices  in  Arkansas,  Louisiana  and  elsewhere, 
made  investigations  extending  through  several  years  of  ar- 
duous work  and  traveling.  Public  "  clamor  "  over  the  land 
frauds  was  great  and  incessant;  and  it  was  not  expected  of 
Garesche  that  he  would  add  to  the  political  difficulties  of  the 
Jackson  administration  by  developing  too  many  damaging 
facts.  Although,  indeed,  he  softened  matters  as  much  as 
possible,  yet,  on  the  whole,  he  seems  to  have  been  as  con- 
scientious as  could  be  looked  for  under  the  circumstances. 
He  reported  on  September  19,  1833,  that  the  fraudulent  New 
Madrid  claims  had  all  been  located,  and  as  for  the  claims  in 
Lovely  county,  "  these  last,  indeed,  have  been  a  great  curse 
to  the  country,  and  have  fraudulently  wrested  from  the  United 
States  vast  tracts  of  land.  .  .  ." 35 

Leading  the  band  of  Arkansas  looters  was  the  notorious 
John  J.  Bowie;  these  particular  frauds  were  consummated 
during  the  period  when  Taney  was  Attorney-General  of  the 
United  States,  and  at  the  time  he  was  appointed  Secretary 
of  the  Treasury.  On  August  14,  1835,  John  K.  Taylor  sent 

34  "  Am.  State  Papers :  Public  Lands,"  Vol.  V :  628. 
as  Ibid.,  Vol.  VII:  183.     (Doc.  No.  1252.) 


UNDER   CHIEF   JUSTICE   TANEY  383 

an  explicit  account  from  Little  Rock  to  President  Jackson ; 
evidently  he  had  no  faith  in  anyone  but  Jackson,  for  he 
wrote : 

"  I  have  again  sat  down  to  trouble  you  with  some  accounts 
from  Arkansas,  and  would  not  do  so,  but  know  no  other 
source  to  apply  to  for  redress  of  wrongs  done  to  the  govern- 
ment under  which  we  live.  The  Superior  Court  of  the  Terri- 
tory adjourned  its  July  session  on  the  loth  instant.  The 
grand  jury  adjourned  on  the  8th  instant,  nine  o'clock  p.  M., 
which  body  brought  to  light  some  of  the  most  glaring  frauds 
ever  practised  upon  this  government,  the  Bowie  and  Yazoo 
claims  not  excepted. 

"  Sir,  it  was  clear  to  the  mind  of  every  juror,  that  men  had 
gone  to  the  different  land  offices,  and  proven  up  Lovely  dona- 
tion claims,  and  for  which  patents  have  in  many  instances 
issued,  when,  in  fact,  such  individuals  never  saw  the  country 
ceded  to  the  Indians.  The  jury  above  alluded  to  have,  from 
proof  in  their  deliberations,  found  some  twenty-five  or  thirty 
bills  of  indictment  against  persons  for  perjury  or  subornation 
of  perjury,  one  of  which  individuals  we  caught  and  had  upon 
trial,  and  his  only  means  of  acquittal  was  to  claim  the  statute 
of  limitations  .  .  .  and  many  others  will  get  off  on  the 
same  grounds.  The  next  grand  jury,  I  have  no  doubt,  will 
have  evidence  sufficient  before  them  to  find  bills  against  many 
persons  who  have  gone  to  the  different  land  offices,  and 
changed  their  names  and  proven  up  claims. 

"  It  has  also  been  lately  discovered,  that  some  of  the  specu- 
lators have  had  influence  enough  over  some  of  the  land  officers 
to  have  the  plats  marked  as  if  entries  had  been  made,  then  let 
them  have  time  to  go  and  examine  before  the  land  was  cer- 
tainly entered ;  which  course  of  conduct  is  calculated  to  de- 
ceive those  who  might  wish  to  enter.  To  give  some  knowl- 
edge of  the  extent  of  the  frauds  committed,  at  the  cession  of 
Lovely  and  Miller  counties  to  the  Indians,  I  have  been  in- 
formed, that  at  the  extent,  not  more  than  five  hundred  per- 


384  HISTORY   OF   THE   SUPREME    COURT 

sons  were  entitled  to  claims,  and  also  understand  that  eight 
or  nine  hundred  have  proven  up.  I  do  not  know  what  course 
government  will  take  (if  any),  but  if  there  should  be  a  board 
of  three  or  five  vigilant  persons,  sent  with  authority  to  the 
border  of  each  of  these  counties  with  power  sufficient  to 
compel  persons  and  papers  to  come  before  them,  every  man 
could  be  identified  who  lived  there  at  the  cession."  36 

As  to  the  extent  of  the  land  frauds  in  Louisiana,  there 
seems  to  have  been  a  conflict  of  statements.  Benjamin  F. 
Linton,  United  States  Attorney  for  western  Louisiana,  re- 
ported to  Jackson,  August  27,  1835,  that  "  the  most  shameful 
frauds,  impositions  and  perjuries  have  been  committed  in 
Louisiana  " ;  in  an  elaborate  report  he  detailed  them.37  But 
Garesche  contended  that  Linton  greatly  exaggerated,  inti- 
mating that  he  did  this  to  divert  attention  from  his  own 
speculations.  Nevertheless,  Garesche's  own  report  was  a  sig- 
nificant enough  picture;  in  his  investigations,  it  was  difficult, 
Garesche  complained,  to  get  anyone  to  testify.  "  Is  it  sur- 
prising," he  wrote  to  the  Secretary  of  the  Treasury,  "  when 
you  consider  that  those  engaged  in  this  business  belong  to 

36  Ibid.,  Vol.  VIII:  404.     (Doc.   No.   1401.)     See,  also,  communica- 
tion from  Grand  Jury,  July  Term,  1835,  to  the  Secretary  of  the  Treas- 
ury, stating  that  "  a  large  proportion,  if  not  a  majority  of  the  claims, 
have  been  proved  by  the  basest  fraud  and  perjury."    Ibid.,  405. 

37  Ibid.,    Doc.    No.    1421.    Of    one    notorious    land    grabber    Linton 
pointedly  wrote :     "  He  could  be  seen  followed  to  and  from  the  land 
office  by  crowds  of  free  negroes,  Indians,  and  Spaniards,  and  the  very 
lowest  dregs  of  society,  in  the  counties  of  Opelousas  and  Rapides,  with 
their  affidavits  already  prepared  by  himself,  and   sworn   to  by  them, 
before  some  justice  of  the  peace  in  some  remote  part  of  the  country. 
These  claims,  to  an  immense  extent,  are  presented  and  allowed,  and 
upon  what  evidence  ?     Simply  upon  the  evidence  of  the  parties  them- 
selves who  desire  to  make  the  entry.     And  would  it  be  believed,  that 
the  lands  where  these  quarter  sections  purported  to  be  located,  from 
the  affidavit  of  the  applicants,  had  never  been  surveyed  by  the  govern- 
ment, nor  any  competent  officer  thereof,  nor  approved  nor  returned 
surveyed?     I   further  state  that  there  was  not  even  a  private  survey 
made.     These  facts  I  know ;  I  have  been  in  the  office  when  the  entries 
were  made,  and  have  examined  the  evidence,  which  was  precisely  what 
I  have  stated  above." 


UNDER   CHIEF   JUSTICE   TANEY  385 

every  class  of  society  from  the  member  of  the  Legislature 
(if  I  am  informed  correctly)  down  to  the  quarter-quarter- 
section  settler !  " 

Garesche  further  reported  that  a  large  company  was  formed 
in  New  York  for  the  purpose  of  getting  hold  of  great  areas 
of  Government  land,  "  and  have  an  agent  who  is  continually 
scouring  the  country.  A  second  agent  from  the  same  quarter 
has  lately  arrived,  with  power  to  draw  any  amount.  The  con- 
stant conversation  everywhere  is  about  the  large  fortunes  that 
have  been  realized  by  land  speculations."  38 

These  great  and  uninterrupted  frauds  produced  an  ugly  im- 
pression among  both  the  middle  and  the  working  classes.  In 
1833,  a  memorial  of  a  "  Portion  of  the  Laboring  Classes  "  of 
New  York  City,  demanded  that,  among  other  measures,  a 
settled  policy  should  be  put  in  force  that  the  whole  of  the 
remaining  public  lands  should  forever  continue  to  be  the 
public  property  of  the  nation.39  This  petition,  of  course,  passed 
unheeded.  To  allay  and  wear  out  public  feeling,  the  cus- 
tomary device  of  an  investigating  committee  was  decided 
upon,  particularly  by  the  Senate,  the  anti-Jackson  element  in 
which  thus  saw  an  opportunity  of  doing  damage  to  his  ad- 
ministration. But  so  long  as  they  were  allowed  to  hold  the 
fruits  of  their  frauds,  and  no  criminal  proceedings  were 
brought,  the  speculators  did  not  seriously  mind  ineffective  ex- 
posures, however  true  and  however  strong. 

Millions  of  Acres  of  Cotton  Lands  to  a  Few. 

How  rapidly  the  public  lands  were  being  alienated  into  the 
hands  of  a  few  was  shown  by  the  report,  on  June  15,  1836, 
of  a  Select  Senate  Committee.  It  is  estimated  that  during 

38  Doc.  No.  168,  Twenty-fourth  Congress,  Second  Session,  Vol.  Ill : 
425.    Also,  Doc.  No.  213,  Ibid. 

39  Ex.  Docs.,  First  Session,  Twenty-Third  Congress,  1834,  Doc.  No. 
104. 


386  HISTORY   OF   THE    SUPREME   COURT 

the  single  year  the  sales  had  totalled  nearly  13,000,000  acres, 
of  which  8,000,000  acres  "  have  probably  been  made  for  specu- 
lation, and  not  for  settlement." 

The  report  continued  to  say  that  "  companies  are  forming 
in  all  directions  to  monopolize  the  ownership  of  the  public 
domain,"  and  that  "  a  total  and  complete  monopoly  of  the 
public  lands  by  speculators  is  now  contemplated."  The  re- 
port went  on : 

"  The  authentic  records  of  the  land  office  demonstrate  that 
the  speculator  is  the  monopolist  of  nearly  all  the  profit  of  this 
immoral,  unjust,  and  oppressive  system ;  a  system  which  is  a 
stain  upon  the  honor  of  a  great  nation.  The  poor  but  in- 
dustrious occupant  generally  attends  the  land  sales,  having 
no  more  money  than  a  sum  sufficient  to  buy  the  land  he  oc- 
cupies at  the  minimum  price;  a  speculator  bids  a  few  cents 
over  him,  and  becomes  the  purchaser  of  the  land  and  the 
owner  of  an  improved  farm,  paying  not  one  cent  for  the 
value  of  the  improvements.  In  other  cases,  where  the  set- 
tler has  collected  something  more  than  the  money  sufficient 
to  pay  for  the  land  he  occupies,  at  the  minimum  price,  and 
bids  that  sum,  the  speculator,  by  some  secret  agent  employed 
by  him,  overbids  the  settler,  the  land  is  struck  off  to  this 
agent,  and  the  settler  leaves  the  sale  in  disgust,  to  mourn  over 
the  injustice  of  the  government  of  the  Union,  and  to  prepare 
for  the  removal  of  himself  and  family  frcm  the  little  farm 
which  he  has  improved  and  expected  to  hrve  purchased  from 
a  paternal  government.  After  the  departure  of  the  settler, 
the  tract  is  forfeited  for  non-payment,  and  the  speculator 
purchases  in  his  own  name  the  forfeited  tract,  probably  at 
the  minimum  price  per  acre. 

"  The  scenes  ensuing  at  many  of  our  land  sales  are  scenes 
of  the  deepest  distress  and  misery.  They  are  scenes  in  which 
many  families  are  driven  forth  from  their  homes  to  seek 
some  other  spot  in  the  wilderness,  where  keen-eyed  avarice 
and  sordid  monopoly  may  not  overtake  them.  But  another 


UNDER    CHIEF   JUSTICE   TANEY  387 

land  sale  comes  on,  the  same  scene  is  repeated,  till  all  hope 
is  extinguished,  and  nothing  is  left  to  the  settler  but  despair 
and  ruin.  Yet  these  scenes  of  fraud  and  cruelty  are  of  con- 
stant occurrence,  permitted  and  encouraged  by  the  present  sys- 
tem of  the  sales  of  the  public  lands  at  public  auction.  Your 
committee  have  said  that  the  speculator,  and  not  the  govern- 
ment, reaps  nearly  all  the  profits  of  these  inglorious  transac- 
tions, and  this  is  proved  by  the  records  of  the  Land  Office. 
By  the  documents  of  the  Land  Office  it  appears,  that  taking 
all  the  sales  of  the  public  lands,  from  the  adoption  of  the 
cash  system,  in  July,  1820,  down  to  the  present  period,  the 
average  price  received  by  the  government  upon  these  sales, 
has  been  less  than  six  cents  an  acre  over  the  minimum  price. 

"  40 

The  committee  proposed  the  sale  and  entry  of.  all  of  the 
public  lands  in  forty-acre  lots  —  a  whimsical  suggestion  to  make 
to  a  Congress  a  large  number  of  the  members  of  which  were  in- 
terested in  the  land  companies.  As  Garesche,  in  detailing  the 
frauds,  alleged  or  real,  in  Louisiana,  wrote  to  Secretary  of  the 
Treasury  Levi  Woodbury,  from  Opelousas,  Louisiana,  on  June 
9,  1836:  ".  .  .  It  is  folly  to  talk  of  the  poor  squatter  — 
the  laws  have  never  been  made  for  him ;  he  gets  but  a  very 
small  fraction  of  the  whole ;  all  the  benefits  of  the  speculation 
fall  into  the  hands  of  the  intriguer ;  it  is  for  him  that  the  bill 
is  introduced ;  it  is  for  him  alone  that  the  voice  of  our  orators 
is  heard  on  the  floor  of  Congress.  .  .  ."  41 

A  Senate  Investigating  Committee  aptly  reported,  in  1835, 
that  "  many  of  the  speculators  are  persons  filling  high 
offices  in  the  States  in  which  the  public  lands  purchased  by 
them  are  situated,  and  others  possessing  wealth  and  influ- 
ence, all  of  whom  naturally  unite  to  render  this  investigation 
odious  among  the  people.  .  .  ." 

The  committee  stated  that  in  some  instances  the  commis- 

40 "American  State  Papers:  Public  Lands,"  Vol.  VIII,  Doc.  No.  1541. 
id.,  965.     (Doc.  No.  1585.) 


388  HISTORY   OF   THE    SUPREME    COURT 

*v 

sioners  were  threatened  with  personal  violence.  An  attempt, 
it  reported,  was  actually  made  upon  the  life  of  one  Com- 
missioner, but  the  assailant  was  killed.  It  said  that  all  who 
testified  were  denounced  and  put  in  fear  by  the  powerful 
combinations  of  speculators.  The  committee  further  reported 
that  "  the  first  step  necessary,  to  the  success  of  every  scheme 
of  speculation  in  the  public  lands,  is  to  corrupt  the  land 
officers,  by  a  secret  understanding  between  the  parties,  that 
they  are  to  receive  a  certain  proportion  of  the  profits."  Great 
enormities,  within  three  or  four  years,  had  occurred,  the 
Committee  stated,  yet  "  no  officer  has  been  removed  for  these 
causes ;  but  the  most  guilty  among  them  have  been  reappointed 
from  time  to  time,  until  they  have  become  bold  and  fearless 
in  their  course,  well  knowing  how  to  retain  their  places,  and 
speculate  .on  the  public  property.  .  .  ."  42 

In  this  report,  true  as  the  facts  were,  an  attempt  was  made 
to  create  partisan  feeling  against  Jackson.  But  the  really  re- 
sponsible were  the  men  surrounding  Jackson  —  Taney,  Wood- 
bury,  Cass  and  others,  who,  after  all,  only  represented  the 
interests  of  the  class  supporting  them. 

The  Long  List  of  Defaulting  Officials. 

One  of  the  most  striking  results  of  the  various  successive 
investigations  was  the  revelation  of  the  astonishingly  large 
number  of  defaulting  Receivers  of  public  money  at  the  dif- 
ferent land  offices.  These  investigations  revealed  that  far 
from  being  a  solitary  practice,  it  was  common  on  the  part  of 
Registers  and  Receivers  to  be  corrupt  accomplices  and  part- 
ners of  the  land  syndicates,  and  corrupt  in  the  embezzlement 
of  public  funds.  These  funds  were  used  for  the  private  and 
fraudulent  purchase  of  public  lands,  which  lands  were  then 
transferred  and  conveyed  over  and  over  again  to  "  safe,  in- 
nocent purchasers."  All  of  these  Registers  and  Receivers 

42 "American  State  Papers:  Public  Lands,"  Vol.  VII:  732-734. 
(Doc.  No.  1335.) 


UNDER   CHIEF   JUSTICE   TANEY  389 

were  seasoned  politicians  themselves,  and  procured  and  held 
their  offices  by  indorsement  of  Governors,  and  members  of 
Congress  and  of  the  Cabinet.  A  House  document,  of  January 
13,  1835,  covering  a  period  of  eight  years,  gives  a  long  list  of 
these  defaulters. 

General  Israel  T.  Canby,  Receiver  at  Crawfordsville,  In- 
diana, defaulted  in  the  sum  of  $46,433.53.  General  John 
Brahan,  Receiver  at  Huntsville,  Alabama,  defaulted  to  the 
amount  of  $74,823.33.  As  to  Brahan's  defalcation,  the  House 
Committee  on  Public  Lands  handed  in  a  strange  report,  say- 
ing that  he  had  used  the  money  to  buy  lands  in  order  "  to 
ward  off  speculators."  Benjamin  Stephenson,  Receiver  of 
the  Land  Office  at  Edwardsville,  111.,  embezzled  $255,354.07. 
William  L.  E.  Ewing,  Register  at  Vandalia,  111.,  could  not 
account  for  the  lack  of  $17,542,  and  George  F.  Strother,  Re- 
ceiver at  St.  Louis,  was  called  upon  to  explain  the  disap- 
pearance of  $32,830.55.  William  Garrard,  Receiver  at  Opel- 
ousas,  Louisiana,  defaulted  in  the  sum  of  $27,230.57,  and 
Luke  Lecassier,  at  the  same  land  office,  was  short  $12,893.95 
in  his  accounts.  Samuel  Smith,  Receiver  at  St.  Stephens, 
Alabama,  had  to  face  an  exposure  of  having  embezzled  $74,- 
1 88.1 1.  John  Taylor,  Receiver  at  Cahawba,  Alabama,  em- 
bezzled $17,463.24,  and  William  Taylor,  at  the  same  place, 
$40,570.75.  In  the  account  of  Andrew  T.  Perry,  Receiver  at 
Sparta,  Alabama,  a  shortage  of  $29,755.57,  was  found.  Ap- 
pointed Receiver,  at  Columbus,  Miss.,  in  1836,  in  the  place 
of  W.  P.  Harris,  a  defaulter  for  $109,178.08,  Gordon  D. 
Boyd  himself  defaulted  in  the  sum  of  $59,622.60  in  a  single 
year.  Among  his  assets  was  "  a  principality,"  that  only  a 
short  time  before  had  been  a  part  of  the  public  domain.43 
These  are  a  few  examples  of  the  whole  number.44 

43  Garesche  pleaded  that  leniency  be  shown  Boyd.     In  his  report  to 
the  Secretary  of  the  Treasury,  June  14,  1837,  Garesche  recommended 
his  being  retained,  cynically  saying  that  "  another  Receiver  would  prob- 
ably follow  in  the  footsteps  of  the  two." 

44  See,  "  American  State  Papers :  Public  Lands,"  Vol.  VII :  559-564. 


390  HISTORY   OF   THE    SUPREME    COURT 

A  House  Committee  majority  report,  submitted  on  Febru- 
ary 27,  1839,  itemized  a  list  of  sixty-six  defaulting  Receivers, 
prior  to  1837,  and  nine  in  1838-39.  This  Committee  was  a 
select  one  of  nine  members;  its  chairman  was  James  Harlan, 
of  Kentucky.  From  the  schedule  reported  by  this  committee, 
it  appears  that  the  whole  amount  due  from  land  receivers  who 
were  on  the  list  of  defaulters  was  (up  to  1839)  $1,073,837.41, 
of  which  the  sum  of  $825,678.28  had  been  defaulted  since  the 
year  i829.45  And  it  also  appears  from  the  official  correspond- 
ence incorporated  in  this  report  that  both  Taney  and  Wood- 
bury,  although  formally  warning  the  receivers,  took  no  puni- 
tive action.  For  example,  Nathaniel  West,  Jr.,  appointed  by 
Secretary  Woodbury,  on  June  26,  1836,  to  examine  the  land 
office  at  Fort  Wayne,  Indiana,  reported  in  detail  that  Colonel 
John  Spencer,  Receiver  at  that  place,  had  been  defrauding 
the  Government.  William  Hendricks,  a  powerful  Democratic 
leader,  in  Indiana,  wrote  to  Woodbury,  on  August  31,  1836, 
urging  him  to  retain  Spencer  in  office.  Woodbury  responded, 
September  7,  1836,  by  saying  that,  "  I  am  happy  to  inform  you 
that  Mr.  Spencer's  explanations  have  been  such  that  he  will 
probably  continue  in  office." 

Only  a  fraction  of  the  defaulted  sums  was  recovered  by  the 
Government. 

These  vast  fraudulent  land  operations  not  only  produced 
tens  of  millions  of  dollars  in  profit  to  the  syndicates,  but  out 
of  those  acquisitions  were  created  great  estates.  The  cotton 
regions  were  extended,  the  slave  owning  power  was  enlarged, 
and  the  wealth  and  dominance  of  the  Southern  plantation 
owners,  bankers  and  of  other  capitalists  were  tremendously 
augmented.  This  was  the  state  of  affairs  when  Taney  took 
his  seat  as  Chief  Justice  of  the  Supreme  Court,  in  1836. 

(Doc.  No.  1289.)  Report  of  U.  S.  Comptroller  Joseph  Anderson. 
See,  also,  Ibid.,  Doc.  No.  1252,  showing  the  speculations  and  the  con- 
nections of  the  land  officers.  Also,  U.  S.  vs.  Boyd  et  al.,  XV  Peters, 
187. 

45  House  Report  No.  313,  Part  IV,  Twenty-fifth  Congress,  Third 
Session. 


CHAPTER  X 

THE    SUPREME   COURT    UNDER    CHIEF   JUSTICE   TANEY 
(CONTINUED) 

On  the  same  day  that  the  appointment  of  Taney  as  Chief 
Justice,  was  confirmed  by  the  Senate,  March  15,  1836,  that  of 
Philip  P.  Barbour,  as  Associate  Justice  to  succeed  Justice 
Duvall,  was  also  confirmed.  Barbour  by  views  and  interests 
was  associated  with  the  landed  class.  His  father,  Thomas 
Barbour,  had  inherited  considerable  wealth,  and  had  been  a 
member  of  the  old  House  of  Burgesses  of  Virginia.  On  the 
maternal  side,  Philip  P.  Barbour  was  related  to  Judge  Ed- 
mund Pendleton,  whose  operations  as  President  of  the  Loyal 
Company  have  been  referred  to  in  Chapter  I  and  elsewhere. 
Thomas  Barbour,  it  is  related,  met  with  reverses,  but  seems  to 
have  recouped  himself  by  securing  a  landed  estate  in  Ken- 
tucky. 

We  have  hitherto  described  how  Charles  Willing  of  Phila- 
delphia obtained  32,000  acres  of  land  in  Kentucky,  in  1784, 
on  certain  treasury  warrants.  It  appears  that  Thomas  Bar- 
bour by  means  of  voiding  that  entry  on  the  ground  of  its 
being  illegal,  secured  legal  title  to  a  large  portion  of  that  area 
and  that  his  possession  was  officially  acknowledged.  Then  had 
come  Humphrey  Marshall,  Federalist  United  States  Senator 
from  Kentucky,  and  a  cousin  of  Chief  Justice  Marshall,  with 
interconnected  claims  of  his  own.  He  asserted  that,  previous 
to  Willing's  entry,  he  had  acquired  title  to  12,313  acres  of  the 
land  claimed  by  Willing.  He  freely  admitted  that  his  claim 
rested  upon  an  entry  made  by  an  intermediary,  one  Isaac 
Holbert.  Also  he  averred  that  he  had  subsequently  acquired 

391 


392  HISTORY   OF    THE    SUPREME    COURT 

an  interest  in  Barbour's  patent.  The  dispute  crystallized  into 
an  action  at-law  between  Willing's  heirs,  on  the  one  part, 
and  Marshall  and  associates,  on  the  other.  The  decision,  by 
Chief  Justice  Marshall,  in  the  Supreme  Court  of  the  United 
States,  in  1831,  went  in  favor  of  Senator  Humphrey  Mar- 
shall, thus  sustaining  the  Barbour  patent.1 

Associate  Justice  Barbour  had,  as  a  student  and  lawyer, 
been  a  close,  diligent  and  conscientious  reader  of  law,  but  it 
was  the  medieval  law,  and  the  outgrowths  of  that  species  of 
law  (such  as  we  have  described),  that  he  had  imbibed.  When 
he  became  Associate  Justice,  he  was  fifty-three  years  old ; 
he,  like  the  other  members  of  the  Supreme  Court,  was  unalter- 
ably impregnated  with  his  class  creed.  His  views  were  soon 
bodied  forth  in  that  famous  dictum  of  his  in  an  opinion  of 
the  Supreme  Court,  written  by  him  in  1837.  The  case  in- 
volved the  constitutionality  of  a  restrictive  immigration  act 
passed  by  the  New  York  Legislature.  In  holding  that  it 
was  constitutional,  Justice  Barbour  declared,  "  We  think  it 
as  competent  and  as  necessary  for  a  State  to  provide  precau- 
tionary measures  against  the  moral  pestilence  of  paupers,  vag- 
abonds and  possibly  convicts,  as  it  is  to  guard  against  physical 
pestilence,"  etc.2  But  a  power  greater  then  the  Supreme 
Court  made  this  dictum  a  dead  letter.  That  power  was  the 
capitalist  class,  the  interests  and  development  of  which  de- 
manded a  never-ending  supply  of  surplus  labor,  so  as  to  be 
able  to  command  the  wage  market  on  its  own  terms. 

Packing  the  Supreme  Court. 

Before  Jackson's  election  the  Supreme  Court  of  the  United 
States  had  been,  as  we  have  seen,  pro  Bank  of  the  United 
States.  As  fast  as  the  old  members  of  that  court  died  or 

1  Case  of  Lewis  et  al.  vs.  Marshall  et  al.,  V  Peters,  470.  The  prin- 
cipal point  against  Lewis  was  the  Kentucky  statute  of  limitations, 
barring  suits  not  brought  within  a  certain  period. 

•  City  of  New  York  vs.  Miln,  XI  Peters,  142. 


UNDER   CHIEF   JUSTICE   TANEY  393 

resigned,  Jackson  had  appointed  as  their  successors  politicians 
whose  opposition  to  the  Bank  of  the  United  States  was  as- 
sured. Never  had  the  fact  that  the  Supreme  Court  was  es- 
sentially a  political  body  been  more  frankly  evident  than  dur- 
ing the  administrations  of  Jackson  and  Van  Buren.  The  taunt 
of  Jackson's  opponents  that  the  Democrats  were  packing  the 
Supreme  Court  with  pro-State-bank  and  pro-slavery  men  was 
fully  justified  by  the  facts. 

As  the  composition  of  the  Supreme  Court  stood  in  1836,  five 
of  the  seven  judges  were  Jackson's  appointees.  Shortly  after- 
ward, on  March  3,  1837,  Congress  passed  an  act  increasing  the 
number  of  Supreme  Court  judges  to  nine ;  this  measure  was  ex- 
pressly enacted  to  insure  a  majority  on  the  Supreme  Court 
bench  favorable  to  State  banks  and  to  negro  slavery.  So  far  as 
the  landed  interests  were  concerned,  no  change  was  necessary ; 
the  Supreme  Court  appointees,  after  Marshall's  death,  fa- 
vored the  land  speculators  and  appropriators  fully  as  much 
as  during  his  tenure ;  and  it  was  easier  for  them  to  do  so, 
having  the  authority  of  Marshall's  decisions  as  precedents. 
The  two  new  Associate  Justices  appointed  in  1837  were  John 
Catron  and  John  McKinley.  Catron  was  fifty-one  years  old 
at  the  date  of  his  appointment,  and  McKinley  fifty-seven.  As 
an  attorney  Catron  was  reputed  to  be  one  of  the  foremost 
authorities  in  the  country  on  land  laws  and  judicial  con- 
structions of  those  laws.  He  had  been  State's  Attorney  in 
Tennessee,  a  judge  of  the  Superior  Court  of  Tennessee  from 
1821  to  1830,  Chief  Justice  of  that  court  from  1830  to  1836. 
McKinley's  career  was  consecutively  that  of  a  politician  in 
Alabama,  from  which  State  he  was  elected  to  the  National 
House  of  Representatives  and  to  the  Senate. 

How  elastic  was  the  thing  called  Constitutional  law,  how  it 
could  be  molded,  as  though  by  order,  to  suit  the  demands 
and  interests  of  the  particular  section  of  the  ruling  class  then 
in  the  ascendent,  was  now  quickly  demonstrated. 

One  of  the  banks  that  had  been  chartered  by  the  Legislature 


394  HISTORY   OF   THE   SUPREME   COURT 

of  Kentucky  was  the  Bank  of  the  Commonwealth,  with  $3,000,- 
ooo  capital.  After  this  bank  had  been  in  operation  for  some 
time  an  action  was  brought  to  have  its  charter  declared  un- 
constitutional. If  such  a  decision  were  made,  then  perforce  all 
banks  chartered  by  States  would  be  illegal.  It  is  probable 
that  this  was  one  of  the  reasons  instigating  this  suit.  But 
there  seem  to  have  been  other  reasons  of  a  very  different  na- 
ture. 

Thus  we  read  that  in  a  speech  in  the  Kentucky  Legislature, 
one  of  the  members,  Wickliffe,  charged  Guthrie,  of  the  Bank 
of  the  Commonwealth,  "  with  belonging  to  a  party  who  once 
issued  three  million  dollars  [in  bank  notes]  without  a  dollar 
to  redeem  them  with.  And  it  is  equally  true,"  Wickliffe 
further  asserted,  "  that  a  portion  of  his  party  raised  a  pony 
purse,  and  promised  great  lawyers  fifty  thousand  dollars  to 
have  their  acts  declared  unconstitutional  and  void  by  the 
Supreme  Court,  that  they  might  be  thereby  released  from 
paying  their  debts  to  this  Commonwealth's  bank."  3 

When  the  case  was  argued  before  Marshall,  he  and  a  ma- 
jority of  the  Supreme  Court  were  of  the  opinion  that  the 
act  of  the  Kentucky  Legislature,  in  chartering  the  bank,  was 
unconstitutional  and  void.  But  the  decision  was  deferred  and 
the  case  was  reargued  before  Taney.  And,  as  was  expected 
from  the  large  majority  of  State  Bank  men  now  on  the  Su- 
preme Court  bench,  a  decision  was  rendered  in  1837,  that  the 
act  incorporating  the  Bank  of  the  Commonwealth  was  a  con- 
stitutional exercise  of  power  and  that  the  bank  notes  issued 
were  not  bills  of  credit  within  the  meaning  of  the  Constitu- 
tion.4 Justice  Story  energetically  dissented ;  as  one  of  the 
"  old  guard  "  he  was  an  opponent  of  State's  rights.  He  him- 
self had  been  instrumental  in  securing  the  chartering  of  banks 

3"A  History  of  Banking  In  All  The  Leading  Nations,"  etc.  (1896), 
Vol.  1 :  144. 

4  Case  of  Briscoe  vs.  The  Bank  of  the  Commonwealth,  XI  Peters, 
257-348.  The  court's  opinion  was  written  by  Justice  McLean. 


UNDER   CHIEF  JUSTICE  TANEY  395 

by  the  Massachusetts  Legislature,  of  one  of  which  banks  he 
had  become  president.  His  attitude  was  anomalous  and 
seemed  to  imply  inconsistency  as  well  as  betoken  rare  disin- 
terestedness in  declaring  against  his  own  interests.  But  we 
have  seen  how  his  bank  fared  well  under  the  Bank  of  the 
United  States  regime. 

Wild- Cat   Currency  Constitutional. 

This  decision  had  its  grim  aspects.  For  years,  long  before 
their  charters  were  formally  declared  "  constitutional,"  the 
owners  of  the  State  banks  had  drenched  the  country  with 
"  wild-cat "  currency,  based  to  a  great  extent  upon  worthless 
security  or  no  security  at  all.  By  1819,  the  banks  in  New 
York  State  alone,  apart  from  those  of  other  States  had  issued 
$12,500,000;  to  redeem  this  fiat  stuff  the  issuing  banks  had 
only  $2,000,000  in  specie.  A  New  York  Senate  Committee 
reported,  in  1819,  that  every  artifice  in  the  wit  of  man  had 
been  devised  to  find  ways  of  putting  these  bank  notes  in  cir- 
culation ;  that  when  the  merchant  received  this  paper,  he,  in 
turn,  "  saddled  it  upon  the  productive  departments  of  labor." 
"  The  great  profits  of  the  banks,"  reported  a  New  York  Sen- 
ate Committe  on  banks  and  insurance,  in  1834,  "  arise  from 
their  issues.  It  is  this  privilege  which  enables  them,  in  fact, 
to  coin  money,  to  substitute  their  evidences  of  debt  for  a 
metallic  currency,  and  to  loan  more  than  their  actual  capitals. 
A  bank  of  $100,000  capital  is  permitted  to  loan  $250,000;  and 
thus  receive  an  interest  on  twice  and  a  half  the  amount  actu- 
ally invested." 5  The  committee  stated  that  banks  in  the 
State,  outside  of  New  York  City,  after  paying  all  expenses 
divided  eleven  per  cent,  among  the  stockholders  in  1833,  -and 
had  on  hand  as  surplus  capital  sixteen  per  cent,  on  their  cap- 
ital. New  York  City  banks,  the  committee  reported,  paid 

5  Doc.  No.  108  [New  York  Senate]  Docs.,  1834,  Vol.  II. 


396  HISTORY   OF    THE    SUPREME    COURT 

larger  dividends.     This  was  an  example  of  similar  conditions 
in  all  of  the  States.0 

The  Workingmen's  Party  of  1829,  in  its  resolution  adopted 
at  Military  Hall,  New  York  City,  on  October  19,  of  that  year, 
denounced  the  bankers  as  "  the  greatest  knaves,  impostors 
and  paupers  of  the  age,"  and  further  declared  that  as  banking 
was  then  conducted,  the  owners  of  the  banks  received  annually 
of  the  people  of  the  State  "  not  less  than  two  million  dollars 
in  their  paper  money  (and  it  might  as  well  be  pewter  money) 
for  which  there  is  and  can  be,  nothing  provided  for  its  re- 
demption on  demand.  .  .  ."  In  the  panic  of  1837,  not  less 
than  eight  hundred  banks  in  the  United  States  suspended 
payment,  refusing  a  single  dollar  to  the  Government  whose 
deposits  of  $30,000,000  they  held,  or  to  the  people  in  general 
who  held  $120,000,000  of  their  notes.7  After  the  passing  of 
the  panic  the  same  old  frauds  continued.  The  decision  of 
1837,  of  the  Supreme  Court  of  the  United  States,  says  an  au- 
thority, "  opened  the  door  wide  for  abuses  of  banking  by  the 
States."  8  Unquestionably  it  did,  as  the  results  fully  proved. 

Competition  Declared  Immutable. 

So  far  as  the  State  rights  issue  was  involved,  the  Supreme 
Court's  policy  under  Taney,  although  exactly  the  reverse  of 
what  it  had  been  under  Marshall,  produced  in  one  respect  the 
same  result  in  effect.  The  Charles  River  Bridge  Case  was  a 

0  The  founders  of  some  of  the  largest  fortunes  of  present  times  were 
large  stockholders  in  some  of  these  banks,  or  were  both  stockholders 
and  officials.  John  Jacob  Astor,  for  example,  held  stock  in  the  Man- 
hattan Bank,  the  Merchants'  Bank,  the  Bank  of  America,  the  Me- 
chanics' Bank  and  others.  Jacob  Lorillard  was  president  of  the 
Mechanics'  Bank,  and  the  Goelet  family  were  extensive  stock  owners 
in  the  Chemical  Bank  (now  the..  Chemical  National  Bank,  one  of  the 
richest  banks  in  the  United  States). 

7 "  Abridgement  of  the  Debates  of  Congress,  from  1789  to  1856," 
Vol.  XIII:  426-427. 

8 "  A  History  of  Banking  In  All  The  Leading  Nations,"  etc.,  Vol. 
I:  144- 


UNDER   CHIEF   JUSTICE   TANEY  397 

striking  instance  of  this.  The  company  owning  this  bridge 
claimed  that  it  held  a  vested,  perpetual  monopoly  by  reason  of 
various  old  empowering  acts  of  the  Massachusetts  Legisla- 
ture. An  act  had  been  recently  passed,  however,  authorizing 
the  construction  of  the  adjacent  Warren  bridge  as  a  free 
avenue.  The  owners  of  the  Charles  River  bridge  asserted 
that  the  Legislature,  in  passing  the  new  act,  had  impaired  the 
obligation  of  a  contract.  The  State  courts  refused  their  pe- 
tition for  an  injunction,  and  Chief  Justice  Taney  sustained  the 
validity  of  the  Warren  bridge  law.9 

This  decision  again  effectually  stamped  into  law  the  doc- 
trine then  proclaimed  as  immutable  by  aggressive  capitalism, 
and  consequently  by  statesmen,  universities,  editorial  sanc- 
tums and  legislative  halls  —  the  doctrine  that  "  competition  is 
the  life  of  trade."  A  companion  edict  to  Marshall's  decision 
in  the  Livingston  steamboat  monopoly  case,  the  decision  de- 
molished the  last  stand  of  the  old,  archaic,  feudal  aristocracy 
and  gave  the  new  industrial  and  transportation  aristocracy 
unlimited  opportunities  for  competitive  expansion  and  indi- 
vidual and  corporate  development.  No  longer  was  "  individ- 
ual enterprise  "  to  be  shackled  by  obsolete  laws ;  the  old  prac- 
tice of  granting  powers  of  monopoly  to  a  favored  few  was 
obliterated  as  a  principle  of  jurisprudence.  This  decision 
freshly  demonstrated  that  the  Supreme  Court  of  the  United 
States  continuously  and  accurately  reflected,  both  in  person- 
nel and  spirit,  the  needs  and  demands  of  the  dominant  sections 
of  the  ruling  class,  and  incarnated  those  requisites  into  con- 
stitutional law. 

In  the  consideration  of  private  land  claims  no  alteration 
whatever  was  made  by  the  reconstituted  Supreme  Court,  fol- 
lowing Marshall's  death.  There  was  no  sectional  controversy 
over  the  spoliation  of  the  national  domain;  in  the  engrossing 
business  of  appropriating  the  public  lands,  men  of  power  and 
influence  of  all  sections  of  the  country  were  jointly  concerned. 

9  The  full  decision  is  set  forth  in  XI  Peters. 


398  HISTORY   OF   THE   SUPREME   COURT 

With  the  question  of  slavery,  the  case  was  very  different.  The 
issue  was  growing  acute  to  a  point  generating  the  deepest  and 
most  vindictive  passions  and  inflaming  the  most  rancorous 
hatreds.  It  was  a  ticklish  question  for  the  Supreme  Court  of 
the  United  States  to  pass  upon  conclusively ;  and  every  art  of 
the  juridical  politicians  on  the  bench  was  requisitioned  into 
deciding  ingeniously  for  the  institution  of  slavery,  and  yet  at 
the  same  time  not  rashly  seem  to  flout  the  anti-slavery  senti- 
ment. 

But  a  great  change  had  come  about  since  Marshall's  deci- 
sion in  the  Antelope  case.  The  Supreme  Court  was  now  will- 
ing enough  to  make  a  concession  to  the  anti-slavery  element 
by  outlawing  the  slave  traffic.  To  retain  the  institution  of 
slavery  itself  some  sop  had  to  be  thrown,  particularly  as  the 
Antelope  decision  had  become  the  scorn  and  jeer  of  certain 
European  powers,  which  now,  more  than  ever  before,  were 
determined  to  put  a  peremptory  stop  to  the  slave  trade.  And 
the  Supreme  Court  doubtless  well  knew  that  whatever  words 
of  indignation  it  should  use  in  declaring  the  slave  traffic  illegal, 
that  traffic  nevertheless,  would  surreptitiously  continue.  That 
this  proved  to  be  so  was  shown  by  the  large  number  of  slave- 
trading  ships  plying  their  traffic  up  to  the  very  outbreak  of  the 
Civil  War,  and  even  after.10 

Revolting  Slaves  to  be  Treated  With  Respect. 

Two  decisions,  handed  down  in  the  same  month  —  January, 
1841 — graphically  illustrated  the  new  policy  of  the  Supreme 
Court. 

The  L'Amlstad,  a  Spanish  schooner,  sailed  from  Havana, 

10  For .  instance :  From  May  I,  1852,  to  May  I,  1862,  twenty-six 
American  schooners  and  brigs  were  libeled  by  the  Government  at  the 
port  of  New  York  alone,  charged  with  being  engaged  in  the  slave 
traffic.  Some  were  seized  at  New  York,  others  on  the  coast  of  Africa. 
Many  were  condemned. —  See,  Senate  Doc.  No.  53,  Vol.  V,  U.  S. 
Senate  Docs.,  Second  Session,  1861-62. 


UNDER   CHIEF   JUSTICE   TANEY  399 

June  27,  1839,  bound  for  Puerto  Principe,  with  a  cargo  of 
slaves  kidnapped  from  Africa.  On  the  voyage  the  negroes 
rose  in  revolt,  killed  the  captain,  and  took  possession  of  the 
vessel.  Off  Montauk  Point,  Long  Island,  Lieutenant  Gedney, 
of  the  U.  S.  brig  Washington,  sighted  the  schooner  and  seized 
her.  Two  Spanish  capitalists,  Jose  Ruiz  and  Pedro  Montez, 
applied  in  court  for  restoration  of  the  slaves  to  them  as  their 
property.  The  negroes,  in  opposition,  recited  that  they  were 
free-born  Africans,  and  not  slaves;  that  in  April,  1839,  they 
had  been  kidnapped  from  Africa  and  transported  to  Cuba  to 
be  sold  as  slaves;  and  that  they  had  risen  in  revolt  and  killed 
the  captain,  intending  to  return  to  their  native  country  or  seek 
asylum  in  some  free  land. 

When  the  circumstances  became  public,  they  aroused  a 
tremendous  sensation.  In  the  North  they  excited  mixed  sym- 
pathy for  the  negroes,  and  indignation  against  the  slave  trad- 
ers. Both  in  North  and  South  admiration  was  felt  for  the 
courage  of  the  revolters,  although  in  the  slave  sections  it  was 
admiration  burdened  with  an  appalling  fear ;  if  the  negroes 
had  shown  such  daring  and  determination  in  revolting  on  the 
ship,  was  it  not  possible  that  the  same  desperation  might  lead 
to  a  general  uprising  of  the  whole  slave  population  in  the 
South  ? 

The  courts  did  not  presume  to  proceed  against  the  kid- 
napped negroes  for  mutiny  and  murder.  The  District  Court 
ordered  them  to  be  returned  to  their  native  land.  When  the 
case  was  appealed  to  the  Supreme  Court  of  the  United  States, 
venerable  John  Quincy  Adams  appeared  as  the  negroes'  at- 
torney. Justice  Story  was  allowed  to  write  the  court's  opin- 
ion (only  Justice  Baldwin  dissenting)  to  this  effect:  That  the 
negroes  had  never  been  lawful  slaves;  that  they  were  natives 
of  Africa,  and  had  been  kidnapped  in  violation  of  the  Spanish 
laws  by  which  the  African  slave  trade  had  been  declared  ut- 
terly abolished  and  by  which  the  traffic  was  outlawed  as  a 


4OO  HISTORY   OF   THE   SUPREME   COURT 

heinous  crime.     The  court  ordered  that  the  negroes  be  set 
free.11 

Where  now  was  Marshall's  doctrine  of  acquiescence?  Was 
it  imperative  on  the  part  of  the  enslaved,  to  revolt  and  slaugh- 
ter, in  order  to  prove  the  absence  of  acquiescence  on  their 
part?  If  so,  the  Supreme  Court  in  that  decision  was  practic- 
ally, although  unwittingly,  giving  this  advice  to  the  enslaved 
of  all  generations :  Tamely  submit  to  servitude,  and  the 
meshes  of  the  law's  fictional  doctrines  will  hold  you.  Revolt 
against  those  conditions,  and  you  prove  to  our  satisfaction 
that  you  do  not  acquiesce. 

Slaves  Were  Merchandise,  Not  Persons. 

But  the  other  and  accompanying  decision,  delivered  in  the 
same  month,  riveted  the  bonds  of  those  already  held  in  slav- 
ery. It  did  this  under  the  State  rights  doctrine. 

Robert  Slaughter  sued  Groves  and  others  for  payment  of 
promissory  notes  due  for  slaves  that  Slaughter  had  brought 
in  to  the  State  of  Mississippi  after  May,  1833.  Large  nurn- 
bers  of  slaves,  it  may  be  said  parenthetically,  had  been  rushed 
into  Mississippi  following  the  fraudulent  acquisition  by  indi- 
viduals and  syndicates  of  those  great  tracts  of  cotton  lands. 
Much  of  this  seizure  had  gone  on  under  Taney,  as  Secretary 
of  the  Treasury ;  and  the  slave  owners,  needing  the  slaves  to 
clear,  till  and  cultivate  the  lands,  imported  gangs  of  them, 
despite  laws  prohibiting  that  importation.  Some  of  these 
slave  owners  —  Groves  and  others  —  saw,  or  thought  they 
saw,  an  easy  way  of  keeping  slaves  purchased  and  yet  escap- 
ing the  necessity  of  paying  for  them.  Groves  et  al.  refused 
to  pay  Slaughter,  claiming  that  the  notes  were  null  and  void 

11  XV  Peters,  518.  The  case  was  entitled  United  States  vs.  L'Ami- 
stad.  The  suit  brought  by  the  Government  had  no  direct  bearing  what- 
ever on  the  question  of  the  negroes,  but  was  instituted  to  determine 
the  rights  of  the  Spanish  claimants  to  the  restitution  of  what  they 
called  their  "  property." 


UNDER   CHIEF   JUSTICE   TANEY  4OI 

because  the  contracts  on  which  they  were  founded  were  in 
direct  violation  of  the  Constitution  of  that  State,  adopted  in 
1832,  which  document  expressly  prohibited  the  introduction 
of  slaves  into  Mississippi,  as  merchandise  for  sale,  after  May 
i,  1833.  The  case  went  up  on  appeal  to  the  Supreme  Court 
of  the  United  States. 

Pleading  that  the  slaves  were  property,  and  that  property 
rights  as  such  should  be  protected,  Jones,  attorney  for 
Slaughter,  urged  upon  the  Supreme  Court :  '  This  case  is  of 
much  importance  in  principle,  and  it  is  also  so  because  of  the 
very  large  amount  of  property  which  depends  for  its  safety 
on  the  decision  of  this  Court.  Millions  of  dollars  have  been 
laid  out  in  the  purchase  of  slaves,  carried  into  the  State  of 
Mississippi  from  other  States  for  sale ;  without  any  idea  on 
the  part  of  the  sellers  or  buyers  that  there  was  any  law  or 
constitutional  provision  which  affected  the  transactions."  12 

Here  the  plea  was  ignorance  of  any  prohibitory  law.  That 
the  Supreme  Court  tolerated  such  a  plea  was  extremely  sug- 
gestive :  in  the  case  of  poor  offenders  did  not  the  courts  always 
implacably  say  that  ignorance  of  the  law  was  no  excuse?  The 
intent  and  meaning  of  the  Mississippi  Constitution  of  1832 
were  direct  and  explicit;  there  could  be  no  mistaking  them. 
How  did  the  Supreme  Court's  decision  meet  this  point?  The 
court  evaded  this  point  and  based  its  decision  upon  entirely 
different,  extraneous  points. 

Delivering  the  court's  opinion,  Justice  Smith  Thompson  af- 
firmed the  decision  of  the  lower  court  in  favor  of  Slaughter. 
True,  the  Mississippi  Constitution  prohibited  the  importation 
of  slaves,  but  (said  he),  it  did  not  invalidate  the  contract;  to 
effect  such  an  invalidation  and  to  carry  it  into  effect,  a  special 
law  was  required,  and  no  such  law  was  passed  until  1837.  The 
sinister  importance  of  this  precedent  will  be  presently  seen ; 
it  was  soon  applied  to  the  validation  of  the  most  enormous 
land  frauds.  Yet  although  Justice  Thompson  declared  that 

12  Case  of  Groves  et  al.  vs.  Slaughter,  XV  Peters,  476. 


4O2  HISTORY   OF   THE   SUPREME    COURT 

the  question  of  the  power  to  regulate  traffic  in  slaves  between 
different  points  was  not  involved,  McLean  and  Taney 
gratuitously  came  forward  to  pronounce  the  supremacy  of 
State  rights. 

Why  this  eagerness  to  thrust  forward  this  formulation?  Be- 
cause the  Constitution  of  the  United  States  treated  slaves  as 
persons,  as  human  beings,  while  the  laws  of  Southern  States 
treated  them  as  property,  and  considered  them  as  merchandise. 
In  a  separate  opinion,  concurring  with  Justice  Thompson,  Jus- 
tice McLean,  after  pointing  out  that  fact  asserted :  ;<  The 
power  over  slavery  belongs  to  the  States  respectively.  .  .  . 
The  right  to  exercise  this  power  by  a  State  is  higher  and  deeper 
than  the  Constitution."  13 

Chief  Justice  Taney  skulked  behind  Justice  McLean.  In 
his  opinion  Taney  wrote  that  he  had  not  intended  to  express 
an  opinion  on  the  power  of  Congress  to  regulate  the  traffic, 
but  inasmuch  "  as  my  Brother  McLean  has,"  therefore  he, 
Taney,  would  "  on  account  of  the  interest  which  a  large  por- 
tion of  the  Union  naturally  feel  in  this  matter,  and  from  an 
apprehension  that  my  silence,  when  another  member  of  the 
court  has  delivered  his  opinion,  might  be  misconstrued." 
Taney  declared  that  the  States  had  exclusive  power  over  the 
slave  traffic.  He  added  that  no  case,  however,  had  yet  arisen 
making  it  necessary  to  decide  the  question  of  control  by  Con- 
gress.14 

What  influences  caused  these  Justices  to  obtrude  opinions 
on  issues  not  involved?  Doubtless  they  were  the  same  influ- 
ences used  in  the  Dred  Scott  case  sixteen  years  later.  The 
real  question  was:  Should  the  enslavement  of  negroes  be 
continued  or  abolished?  The  fate  of  millions  of  blacks  in 
bondage,  and  millions  more  yet  unborn,  hung  upon  the  answer. 
And  here  was  the  handful  of  men  on  the  Supreme  Court,  all 

13  XV  Peters,  508. 

14  Ibid.,  509.    Justices  McKinley  and   Story  dissented   from  Thomp- 
son's opinion,  Justice  Catron  was  ill,  and  Justice  Barbour  died  before 
the  case  was  decided. 


UNDER   CHIEF   JUSTICE  TANEY  403 

relatively  old  men,  pretending  not  to  know  the  fundamental 
issue,  yet  resorting  to  every  dexterous  device  and  fine-spun 
technical  construction  to  justify  and  enforce  negro  slavery. 

In  the  meantime,  during  the  period  following  Marshall's 
death,  the  Supreme  Court  continued  validating  private  land 
claims,  most  of  which  lay  in  the  South  and  the  beneficiaries  of 
which  were  either  Southern  slave  holders  or  a  combination 
of  them  and  Northern  capitalists. 

More  Land  Claims  Validated. 

The  Soulard  claim  in  Missouri,  one  of  the  land  claim  cases 
the  decisions  in  which  were  deferred  by  Marshall  for  six  years, 
was  decided  by  the  Supreme  Court  in  January,  1836,  shortly 
before  Taney  was  confirmed  as  Chief  Justice.  This  claim,  to 
recapitulate,  covered  10,000  arpents  of  land  seventy  miles 
north  of  St.  Louis  and  about  fifteen  miles  west  of  the  Missis- 
sippi River. 

It  was  a  claim  alleged  to  have  been  granted  to  Antoine 
Soulard,  father  of  the  ostensible  claimants,  by  Trudeau,  the 
Spanish  Lieutenant-Governor  of  Louisiana,  in  1796.  Soulard 
had  been  Surveyor-General,  and  it  was  alleged  that  the  grant, 
so-called,  had  been  surveyed  by  his  deputy  surveyor,  Don  San- 
tiago Rankin,  in  1804.  This  claim  as  well  as  many  others 
bearing  Trudeau's  and  Soulard's  supposed  signatures,  had 
been  rejected  by  the  U.  S.  Board  of  Land  Commissioners  in 
1806-1807,  as  forged  and  in  other  respects  fraudulent.  The 
Soulard  claim  was  also  one  of  a  number  of  such  claims  re- 
jected by  Judge  Peck,  in  the  U.  S.  District  Court  at  St.  Louis, 
in  1825,  as  illegal  and  invalid.  Senator  Benton  of  Missouri 
was  one  of  counsel  for  Soulard's  heirs.  They  could  produce 
no  original  decree  of  concession  and  certificate  of  survey ; 
when  asked  to  explain  they  replied  that  those  papers  "  were  by 
mistake  thrown  into  the  fire  and  destroyed." 

In  January,  1836,  the  Supreme  Court  of  the  United  States 


404  HISTORY   OF   THE    SUPREME    COURT 

validated  the  Soulard  claim.  That  validation,  of  course,  car- 
ried with  it  the  validation  of  many  similar  claims.  Justice 
Baldwin  delivered  the  Court's  opinion  and  it  was  very  brief. 
It  fell  back  upon  the  precedents  set  by  Marshall  in  the  Florida 
cases,  and  declared  that  Soulard's  heirs  had  a  good  and  valid 
title.15 

In  his  scorching  criticism  of  the  Supreme  Court's  decisions, 
Judge  Peck  gave  particular  attention  to  Soulard's  activities. 
He  proceeded  in  great  detail  to  "  state  the  reasons  upon  which 
it  appears  to  me  to  impeach  the  record  of  surveys  made  by 
Antoine  Soulard  and  to  establish  the  startling  fact  that  the 
frauds  which  appear  to  pervade  the  great  mass  of  these  Span- 
ish claims  pervade  also  the  record  of  surveys  made  by  Soulard 
under  the  Spanish  government." 1C  After  exhaustively  and 
specifically  describing  the  inception  and  development  of  these 
frauds,  Judge  Peck  urged  that  the  facts  related  should  be 
convincing  "  that  those  concessions  had  not  been  issued,  had 
not  existence  at  the  date  of  those  surveys,  and  therefore  could 
nc?t  at  that  date  have  been  delivered  to  Mr.  Soulard  or  to  his 
deputy."  17  Yet  the  Supreme  Court  held  fast  to  the  doctrine 
that  when  an  official  survey  was  made  the  lands  surveyed  were 
thereby  detached  from  the  mass  of  public  lands  and  vested  in 
the  beneficiary.  The  circumstances  mattered  nothing;  the 
formal,  official  act  was  conclusive,  sacred  and  perpetually  bind- 
ing. 

It  was  because  it  could  not  act  in  a  way  contradictory  to 
its  own  dictum  that  the  Supreme  Court  found  itself  compelled 
to  reject  certain  private  land  claims  which,  it  was  proved  by 
the  Government,  had  never  been  surveyed.  One  of  these 
rejected  on  this  ground  was  that  of  John  Smith,  who  claimed 

15  Case  of  Soulard's  Heirs  vs.  U.  S.,  X  Peters,  100-106. 

18  "American  State  Papers:  Public  Lands,"  Vol.  VIII:  841.  Doc. 
No.  1538. 

17  Judge  Peck's  criticism  was  so  voluminous  with  records  and  facts, 
that  neither  the  whole  nor  any  adequate  part  can  appropriately  be 
cited  here.  Those  desirous  of  learning  its  contents  in  detail  are  re- 
ferred to  Doc.  No.  1538. 


UNDER   CHIEF   JUSTICE   TANEY  405 

to  have  bought  a  grant  for  10,000  arpents  in  Missouri,  alleged 
to  have  been  granted  by  Governor  Carondelet,  to  James  St. 
Vrain,  in  1796.™  But  this  was  one  of  the  comparatively  few 
claims  the  confirmation  of  which  was  refused.  The  total  area 
of  the  claims  in  Missouri  based  upon  alleged  Spanish  grants 
aggregated  a  very  large  area ;  the  claims  alleged  to  have  been 
given  by  Delassus,  Trudeau's  successor,  alone  embraced  about 
500,000  arpents;  yet  Judge  Peck  most  clearly  showed  that  a 
certain  alleged  official  Spanish  order  by  Morales,  Delassus'  su- 
perior, purporting  to  suspend  the  strict  limitations  under  which 
land  was  granted,  was  "  a  forgery  of  recent  date,  and  in  the 
handwriting  of  Delassus."  19 

In  January  1840,  the  Supreme  Court  of  the  United  States 
gave  another  decision  which,  although  involving  only  three 
hundred  acres  of  land  in  Florida,  nevertheless  served  as  an- 
other precedent  of  vast  importance,  which  together  with 
previous  decisions,  was  later  successfully  cited  by  claimants 
in  cases  dealing  with  the  private  appropriation  of  immense 
areas  of  the  public  domain.  This  was  the  action  of  the  United 
States  vs.  Wiggins.  The  claimant  relied  upon  a  certified  copy, 
or  a  testimonio,  of  a  concession  made  by  the  Spanish  author- 
ities. The  original  concession  could  not  be  found  among  the 
archives,  nor  was  its  existence  proved.  A  clerk  in  Aguilar's 
office,  where  the  archives  were  deposited,  and  who  had  been 
custodian  for  six  years,  testified  that  he  had  never  seen  or 
heard  of  the  original.  The  Surveyor-General  never  saw  it, 
nor  was  it  enumerated  in  the  list  of  documents  made  soon  after 
the  cession  of  Florida.  Notwithstanding  this  negative  proof, 
the  Supreme  Court  of  the  United  States  accepted  the  plea 
that  the  original  grant  had  once  existed,  and  it  validated  the 
claim.20 

18  Case  of  John  Smith  vs.  U.  S.,  X  Peters,  324-336.     Senator  Benton 
was  Smith's  attorney. 

19  "American  State  Papers:  Public  Lands,"  Vol.  VIII:  839.     (Doc. 
No.  1538.) 

-°  See,  XIV  Peters,  334. 


406  HISTORY   OF    THE    SUPREME    COURT 

Citing  this  decision  as  authority,  the  Supreme  Court  kept 
on  validating  Florida  land  grants,  the  original  concessions  of 
which  were  never  produced,  and  the  sole  bases  of  which  were 
alleged  copies  certified  by  Aguilar.  One  of  these  claims,  for 
example,  was  that  of  John  Rodman  for  16,000  acres  of  land 
on  the  west  side  of  St.  John's  River,  said  to  have  been  granted 
to  Robert  M'Hardy,  a  surveyor,  for  the  building  of  a  saw- 
mill. The  Government  contended  that  not  only  did  no  original 
concession  exist,  but  that  the  conditions  of  the  alleged  grant 
had  never  been  complied  with.  The  Supreme  Court,  however, 
validated  the  claim.21  But  some  claims  were  rejected,  not  be- 
cause they  differed  intrinsically  from  the  confirmed  claims, 
but  because  the  claimants  had  not  been  shrewd  enough  to  get 
an  aggregation  of  testimony  affirming  that  formal  surveys  had 
been  made,  or  that  the  original  deeds  of  concession  had  been 
lost  or  destroyed.22  The  moral  seemed  to  be  that  those  who 
were  so  stupid  as  to  neglect  to  fortify  their  claims  with  ample 
required  testimony,  deserved  to  lose. 

The  cumulative  results  of  these  precedents  were  shown  in 
more  than  one  way.  They  not  only  alienated  into  private 
ownership  huge  domains  in  territory  already  in  the  United 
States,  but  they  gave  points  to  land  grabbers  how  to  devise 
and  buttress  frauds  in  Texas  and  in  the  vaster  regions  soon 
after  acquired  by  the  United  States  from  Mexico.  But  before 
reciting  these  facts,  it  is  necessary  to  advert  to  some  changes 
occurring  in  the  personnel  of  the  Supreme  Court. 

Three  New  Associate  Justices. 

At  Associate  Justice  Barbour's  death,  Peter  V.  Daniel,  on 
March  3,  1841,  was  appointed  to  succeed  him.  Daniel  was  con- 
nected with  both  the  landed  aristocracy  and  the  dominant 
political  coterie ;  he  was  the  scion  of  an  old  Virginia  landed 

21  U.  S.  vs.  Rodman,  XV  Peters,  130-140. 

22  Buyck's  claim   for  50,000  acres  in   Florida  was  thus  thrown  out, 
Delespine's  for  92,160  acres,  etc. —  See,  Ibid.,  215,  319,  etc. 


UNDER   CHIEF   JUSTICE   TANEY  407 

family,  and  his  father  was  a  man  of  fortune.  Peter  V.  Daniel 
had  increased  the  family's  power  by  marrying  a  daughter  of 
Edmund  Randolph,  in  whose  office  he  had  studied  law.  Ran- 
dolph had  a  large  landed  estate,  and  had  been  a  potent  poli- 
tician, serving  in  Washington's  Cabinet.  Daniel  had  been 
long  in  politics  and  office  holding;  he  had  been  a  member  of 
the  Virginia  Privy  Council  in  1812,  Lieutenant-Governor  of 
Virginia  in  1835,  and  in  1836  had  been  appointed  judge  of  the 
U.  S.  District  Court  in  Virginia.  He  was  one  of  Jackson's 
personal  friends  as  well  as  a  strong  political  adherent.  At 
the  date  of  his  appointment  to  the  Supreme  Court  he  was  fifty- 
seven  years  old. 

Associate  Justice  Baldwin  died  in  1844.  Toward  the  close 
of  his  career  his  mind  was  deranged,  and  he  was  often  violent 
and  ungovernable  on  the  Supreme  Court  bench.  In  such  ab- 
ject poverty  did  he  die  that  his  friends  found  it  necessary  to 
raise  a  fund  for  his  burial  expenses. 

This  surely  is  a  significant  fact.  Here  was  one  of  the  Jus- 
tices conspicuously  instrumental  in  giving  away  to  spoliators 
enormous  areas  of  the  most  valuable  agricultural,  timber  and 
mineral  lands  in  the  country.  The  beneficiaries  of  the  de- 
cisions profited  to  the  extent  of  hundreds  of  millions  of  dol- 
lars. Yet  Baldwin  himself  received  no  reward  nor  any  part 
of  the  profits.  Typical  of  many  other  Justices,  he  was  per- 
sonally incorruptible  so  far  as  money  went.  It  was  not  es- 
sential to  corrupt  by  mercenary  means  men  of  his  type.  The 
class  bias  of  their  minds,  the  training  that  they  had  received 
both  in  law  and  politics,  and  their  case-hardened  views  on 
vested  property  rights  —  these  were  usually  sufficient  explana- 
tions of  their  attitude  and  decisions.  To  attempt  to  bribe 
men  whose  favor  could  be  counted  upon  in  advance  would 
have  been  dangerous,  as  well  as  a  superfluous  expense.  We 
have  seen  such  judges  and  officials  in  our  own  time.23 

23  For  example,  John  G.  Carlisle.  As  Secretary  of  the  Treasury,  in 
1895,  he  turned  over  a  bond  issue  to  a  syndicate  headed  by  J.  Pierpont 


408  HISTORY   OF   THE    SUPREME    COURT 

And  although  Associate  Justice  Story,  at  his  death  in  1845, 
left  an  estate  it  was  not  large  compared  to  great,  or  even  pas- 
sable, fortunes  of  the  time.  He  had  been  extremely  liberal 
to  his  family,  and  had  educated  them  at  considerable  expense. 
"  My  worldly  estate,"  he  wrote  in  his  will,  "  is  not  large,  partly 
because  I  have  not  felt  as  strongly  as  some  persons  the  impor- 
tance of  wealth  to  happiness."  2* 

As  a  lawyer  he  had  scrupled  at  no  case,  however  rankly  it 
reeked  with  fraud.  But  in  his  character  of  Justice,  his  course 
was  not  determined  by  bribes;  it  was  assured  by  far  more 
efficacious  and  subtly  permeating  influences  —  class  loyalty, 
class  prejudices,  class  interests  and  personal  gratitude  and 
associations,  as  also  (so  the  facts  prove)  personal  interest. 
All  of  these  men  had  absorbed  the  views  of  the  ruling  class 
and  the  ancient  laws  drafted  to  insure  the  supremacy  of  that 
class ;  these  ingrained  ideas  became  inexorable  convictions 
which  no  argument  could  shake,  and  which  they  conceived 
had  to  be  translated  into  edicts  at  every  fresh  opportunity. 
Such  men  were  unshakenly  class-disciplined. 

Levi  Woodbury  was  now  appointed  to  the  Supreme  Court. 
His  appointment  did  indeed  cause  the  land  appropriators  to 
exult  in  high  gratification,  but  it  was  received  with  execra- 
tions by  the  forces  opposed  to  the  plundering  of  the  national 
domain. 

Both  of  these  elements  recalled  his  compliant  serviceable- 
ness  to  the  syndicates  of  land  grabbers  in  the  South,  when  he 
was  Secretary  of  the  Treasury,  and  how  he  had  shielded  cor- 
rupt land  officials  who  had  been  the  tools  and  accessories  of 
those  combinations.  In  fact  insidious  comment  was  made  that 
his  appointment  as  Associate  Justice  came  at  the  very  time  when 
astoundingly  enormous  frauds  were  being  originated  or  car- 
Morgan,  allowing  that  syndicate  to  make  $18,000,000  profit.  After 
Carlisle  left  office  he  was  slightly  rewarded  by  being  employed  as  a 
corporation  attorney.  He  died  recently  in  utter  poverty,  and  his  friends, 
had  to  defray  the  expenses  of  his  burial. 
24,"Life  and  Letters,"  etc.,  Vol.  II:  553. 


UNDER   CHIEF   JUSTICE   TANEY  409 

ried  through   in  Texas  —  frauds   the  ultimate  validation  of 
which  would  depend  upon  the  courts. 

At  this  point  the  significant  fact  should  be  noted  that  Wood- 
bury's  successor  as  Secretary  of  the  Treasury  was  none  other 
than  Robert  J.  Walker,  the  head  and  front  of  the  great  com- 
bination of  speculators  which  had  secured  such  enormous 
areas  of  cotton  lands  in  Mississippi  under  Taney  and  Wood- 
bury's  administrations.  With  the  wealth  extracted  from  land 
grabbing  Walker  easily  had  himself  elected  to  the  United 
States  Senate  in  1836.  He  was  Secretary  of  the  Treasury 
^from  1845  to  !849;  as  has  been  noted,  the  Secretary  of  the 
Treasury  then  held  jurisdiction  over  the  public  lands. 

At  the  same  time  that  Woodbury  was  appointed  to  the 
Supreme  Court,  in  1845,  Samuel  Nelson  received  his  appoint- 
ment to  that  tribunal.  Nelson  owned  a  landed  estate  of  con- 
siderable value  at  Cooperstown,  New  York.  In  1846  Robert 
Grier,  at  the  age  of  fifty-two,  ascended  the  Supreme  Court 
bench  by  grace  of  President  Folk's  commission.  Grier  had 
been  a  judge  in  Pennsylvania;  he  had  turned  from  Federalism 
to  support  of  the  Democratic  Party,  and  as  a  lawyer  was  as- 
sociated with  the  land  interests. 


The  Great  Land  Frauds  in  Texas. 

The  capitalists  promoting  the  huge  frauds  in  Texas  were 
largely  those  interested  in  the  great  Florida,  Mississippi  and 
Arkansas  land  spoliations.  George  Griswold,  so  conspicuous 
in  the  Mitchell  claim  of  1,200,000  acres  in  Florida  validated  by 
the  Supreme  Court  of  the  United  States,  was  equally  prom- 
inent in  the  Texas  frauds.  Associated  with  him  was  an 
array  of  other  Northern  capitalists  —  Anthony  Dey  of  New 
York,  William  H.  Sumner  of  Boston,  George  Curtis  of  New 
York,  Dudley  Selden,  a  New  York  politician,  General  John 
T.  Mason,  Stephen  Whitney  and  others  of  the  same  city. 
From  the  profits  of  his  land  transactions,  Stephen  Whitney 


4IO  HISTORY   OF   THE   SUPREME   COURT 

became  so  rich  that  at  one  time  he  was  regarded  as  approach- 
ing Commodore  Vanderbilt  in  point  of  wealth;  in  1852  Whit- 
ney's estate  was  estimated  at  a  round  $7,000,000.  But  these 
were  only  a  few  of  the  Northern  capitalists  concerned  in  vest- 
ing in  themselves  immense  stretches  of  Texas  land.  Many 
other  combinations  and  corporations  were  formed  at  the  same 
time,  embracing  Northern  and  Southern  politicians  and  capi- 
talists, slave  owners,  judges  and  some  of  the  highest  officials  in 
the  country. 

Texas  contains  274,356  square  miles  or  175,587,840  acres 
—  an  area  exceeding  that  of  the  thirteen  original  States. 
The  western  part  of  Texas,  because  of  the  supposed  lack  of 
water,  was  long  not  considered  habitable  for  man  or  beast, 
although  in  recent  times  inexhaustible  subterranean  supplies 
of  water  have  been  discovered,  and  orchards  and  farms  now 
yield  their  harvests  on  stretches  once  deserts.  But  the  po- 
tential richness  of  the  equally  vast  areas  of  eastern,  northern, 
central  and  southern  Texas  was  early  recognized ;  it  was  well 
known  that  great  tracts  of  valuable  primitive  timber  lands 
awaited  utilization,  and  that  the  soil  was  variously  adapted  for 
the  raising  of  cotton,  sugar-cane,  rice,  tobacco  and  other  crops. 
It  was  a  country  marvelously  adapted,  also,  for  cattle  ranging. 

Beginning  in  1821,  when  Texas  was  still  a  province  of  Mex- 
ico, various  promoters,  or  "  empressarios,"  as  they  were  called, 
solicited  and  obtained  contracts  from  the  officials  of  the  joint 
States  of  Coahuila  and  Texas,  by  which,  as  compensation  for 
their  services  in  introducing  colonists,  they  were  to  receive 
the  jurisdiction  of  great  colony  grants  of  land.  Each  bona 
fide  colonist  was  to  be  entitled  to  a  certain  tract  of  land  for 
himself,  usually  a  league  and  a  labor  (about  4,605  acres),  and 
the  "  empressario  "  was  to  receive  as  personal  compensation 
certain  stated  premium  lands.  In  1824  an  event  happened 
which  had  a  direct  and  sinister  connection  with  the  origin  and 
consummation  of  stupendous  land  frauds.  This  was  the  ap- 
pearance in  San  Felipe  of  Samuel  M.  Williams,  a  young  Bal- 


UNDER   CHIEF   JUSTICE   TANEY  411 

timore  adventurer.  He  had  been  in  Mexico  for  several  years 
and  had  learned  the  Spanish  language  thoroughly.  His  ad- 
vent in  San  Felipe  was  as  secretary  of  the  land  office  at  that 
place. 

The  Colonization  Contracts. 

From  1821  to  1832  thirty-three  colonization  contracts  were 
allowed  by  the  Mexican  officials.  In  1823  Moses  Austin  made 
one  contract,  and  in  1823-1826  his  son,  Stephen  F.  Austin, 
made  four  contracts,  covering  scores  of  leagues  of  territory ; 
their  agreements,  as  was  the  case  with  certain  others,  did  not 
specify  how  many  families  were  to  be  brought  in.  Robert  Left- 
wich,  by  the  contract  of  April  15,  1824,  was  to  introduce  eight 
hundred  families;  he  soon  died  and  Sterling  C.  Robertson 
and  Alexander  Thompson  assumed  the  contract  under  the 
name  of  the  Nashville  Company.  Martin  DeLeon,  in  1824 
and  1829,  made  two  contracts,  and  Frost  Thorn,  by  his  contract 
of  1825,  was  to  introduce  four  hundred  families.  D.  G.  Bur- 
net,  Joseph  Vehlein  and  Lorenzo  D.  Zavala  variously  made 
contracts  in  1828  and  1829,  and  similar  contracts  were  en- 
tered into  by  Benjamin  R.  Milam,  John  L.  Woodbury,  John 
Cameron,  General  Thomas  J.  Chambers,  Hewitson  and  Pow- 
ers and  others.  Such  of  these  contracts  as  specified  the  num- 
ber of  families  to  be  brought  in  show  a  total  of  9,248  families 
contracted  for,  to  be  settled  in  Texas. 

When  these  contracts  were  made  Commissioners  were  ap- 
pointed, or  alleged  that  they  had  been  appointed,  by  the  Mex- 
ican authorities  to  determine  the  number  of  colonists  intro- 
duced and  to  give  titles  to  both  colonists  and  contractors 
accordingly.  Williams  acted  in  that  capacity  for  Austin's 
colony ;  George  A.  Nixon  for  the  Burnet,  Zavala  and  Vehlein 
grants ;  William  H.  Steele  for  the  Nashville  Company's  col- 
ony, and  other  Commissioners  for  other  colonies.  In  some 
cases  the  immediate  friends  or  relatives  of  the  contractors 
were  appointed,  or  audaciously  assumed  the  post  of  Commis- 


412  HISTORY   OF   THE   SUPREME   COURT 

sioner,  which  was  not  a  difficult  imposture  in  a  remote  country 
and  in  a  period  of  civil  chaos,  particularly  following  the  time 
when  Mexico  won  its  independence  from  Spain. 

Many  of  the  colonization  contracts,  however,  were  almost 
at  once  turned  over  to  companies  of  absentee  capitalists  who 
had  never  seen  Texas,  had  no  intention  of  going  there,  and 
whose  only  purpose  was  exploitation. 

Not  a  few  of  these  capitalists  were  New  York  and  Boston 
owners  of  packet  lines  whose  methods  in  luring  over  poor 
European  immigrants,  charging  them  extortionate  rates,  herd- 
ing them  foully  in  the  ships,  and  dumping  them  unceremoni- 
ously in  a  state  of  destitution  at  the  different  Northern  ports 
were  at  that  very  time  subjects  of  legislative  investigations  at 
home.  Thus,  the  Burnet,  Zavala  and  Vehlein  contracts  be- 
came the  property  of  a  corporation  calling  itself  "  The  Gal- 
veston  Bay  and  Texas  Land  Company,"  the  officers  of  which 
were  General  John  T.  Mason,  George  Griswold,  Stephen  Whit- 
ney, Dudley  Selden  and  associates.25  Another  such  corpora- 
tion composed  of  New  York  and  other  Eastern  capitalists 
was  "  The  Colorado  and  Red  River  Land  Company,"  based 
upon  the  colonization  contracts  of  J.  C.  Beale.  The  general 
offices  of  this  corporation  were  at  No.  8  Wall  Street,  New 
York,  with  L.  B.  Woodruff  as  secretary  and  attorney.26  Al- 
though the  Beale  contracts  called  for  the  colonization  of  only 
six  hundred  families,  yet,  in  its  prospectus  the  company  com- 
puted the  area  in  its  grants  at  tzventy  million  acres,  and  stated 
that  it  was  authorized  to  select  for  itself,  "  where  it  pleased," 
a  premium  of  23,000  acres  for  each  one  hundred  families  that 
it  colonized. 27 

25  Case  of  Rose  vs.  the  Governor,  etc.,  XXIV  Texas  Reports   (Su- 
preme Court  of  Texas),  p.  496. —  See,  also,  "Address  To  The  Reader 
of  the  Documents  Relating  To  The  Galveston  Bay  and  Texas   Land 
Company,  etc.,  New  York,  1831."     It  was  the  company's  pamphlet  call- 
ing public  attention  to  the  value  of  its  land  for  timber  supplies,  and 
for  raising  sugar,  cotton,  rice,  indigo,  tobacco,  etc. 

26  This  prospectus  was  issued  in  pamphlet  form ;  the  date  is  uncer- 
tain—  probably  1834  or  1835.    The  above  statement  appears  on  page  I. 

"Ibid.,  3. 


UNDER   CHIEF   JUSTICE   TANEY  413 

f 

Among  the  various  contractors  or  colonization  corporations 
there  existed  a  combination  of  inter-related  interests.  In  the 
Nashville  Company,  for  instance,  Samuel  M.  Williams, 
Stephen  F.  Austin,  H.  H.  League  and  associates  were  inter- 
ested, and  some  of  the  same  group  were  prime  movers  in  the 
Powers  and  Hewitson  contract. 

These  men  were  among  the  real  promoters  of  the  move- 
ment for  the  independence  of  Texas;  it  was  their  interests 
that,  not  entirely,  but  largely,  engendered  the  struggle,  and 
it  was  their  capital,  in  part,  that  supplied  the  arms  and  ammu- 
nition.28 Their  frauds  in  seizing  land  were  so  truly  gigantic 
and  so  flagrantly  in  violation  of  the  Mexican  laws  that  to  reap 
the  full  benefits  of  their  spoliations,  they  aimed  to  eject  Mex- 
ican authority  and  substitute  their  own  government  and  offi- 
cials. They  themselves,  they  knew,  would  become  the  head 
officials  of  the  new  Republic.  This  may  not  be  romance,  but 
it  is  fact. 

It  is  also  a  fact  that  so  well  grounded  were  the  fears  of 
these  spoliators  that  some  aggressive  Mexican  President  might 
declare  their  enormous  frauds  forfeited,  that  they  were  des- 
perately bent  upon  getting  Texas  out  of  the  jurisdiction  of 
Mexico.  General  Santa  Anna,  President  of  Mexico,  did  in 
fact  issue  a  decree  to  this  effect  in  1853.  Article  I  of  his  de- 
cree declared  that  the  public  lands,  as  the  exclusive  property 
of  Texas,  never  could  have  been  alienated  by  decrees,  orders 
or  enactments.  Article  II  denounced  all  sales,  made  without 
the  approval  of  the  central  government,  as  null  and  void,  and 
Article  IV  prohibited  officials  from  admitting  such  claims. 
This  decree  was  followed  by  a  still  stronger  decree  in  1854. 

28  And  they  later  received,  in  return  for  these  outlays  and  advances, 
scrip  entitling  them  to  1,329,200  acres.  Stephen  Whitney  claimed  that 
Mason  advanced  $1,000  to  Williams  as  a  loan  in  supporting  the  war 
for  independence  in  1835. —  Journal  of  the  Texas  Senate,  1856:  352. 
Williams  owned  the  Bank  of  Agriculture,  chartered  in  1835,  and  with 
his  partner,  McKinney,  held  large  claims  for  loans  to  the  Texas 
Government.  Many  of  such  claims,  it  was  discovered,  were  forged. — 
See  "  Official  Journal,  Texas  Senate,"  1856 :  369. 


414  HISTORY   OF   THE   SUPREME   COURT 

But  by  that  time  all  of  Texas,  California,  New  Mexico,  Ari- 
zona and  other  territory  had  gone  into  possession  of  the 
United  States.  Later  on  in  this  work,  these  decrees  and  how 
they  were  nullified  by  the  Supreme  Court  of  the  United  States, 
are  described  in  detail. 

Thus  we  see  the  land  grabbers  had  the  strongest  possible 
economic  reason  for  wresting  Texas  from  Mexico.  Many  of 
them  like  Burnet  and  Milam  became  the  chief  officials  of  the 
Republic  of  Texas. 

How  enormous  a  territory  these  contracting  individuals  and 
companies  fraudulently  appropriated,  and  the  bold  methods 
that  they  used,  may  be  learned  from  the  action  of  the  Texas 
Constitutional  Convention  of  1836.  In  many  places  in  Texas 
the  actual  settlers  were  literally  up  in  arms  against  these 
fraudulent  claims,  and  the  Convention  was  forced  to  take 
notice. 

After  achieving  its  independence,  Texas,  of  course,  had  full 
control  over  its  public  lands;  and  subsequently  it  consented 
to  annexation  to  the  United  States  only  upon  condition  that  it 
retain  that  jurisdiction.  To  this  day  that  control  has  been 
retained;  Texas  lands  have  never  been  subject  to  the  author- 
ity of  the  National  Government. 

Eleven  Hundred  Leagues  of  Spurious  Claims. 

Article  220  of  the  Texas  Constitution  of  1836,  aimed  to 
prevent  the  indiscriminate  plundering  going  on.  Section  D 
prohibited  aliens  from  holding  land  except  by  direct  title  from 
the  Republic  of  Texas.  Section  I  was  designed  to  annul  an 
immense  grant  to  General  John  T.  Mason  and  company.  It 
declared  that  "  the  protection  of  the  public  domain  from  un- 
just and  fraudulent  claims  ...  is  one  of  the  great  duties 
of  this  Convention."  It  recited  that  the  Legislature  of  Coa- 
huila  and  Texas  in  1834  and  1835  passed  two  acts  in  behalf 
of  Mason,  "  under  which  the  enormous  amount  of  eleven  hun- 


UNDER    CHIEF   JUSTICE   TANEY  41$ 

dred  leagues  of  land  had  been  claimed  by  sundry  individuals, 
some  of  whom  reside  in  foreign  countries,  and  are  not  citi- 
zens of  the  Republic."  Those  acts,  the  Constitution  further 
read,  were  contrary  to  the  laws  of  Mexico,  and  were  forthwith 
declared  null  and  void.29  One  peculiarly  heinous  feature,  the 
Convention  declared,  was  that  the  land  grabbers  had  taken 
advantage  of  the  absence  of  most  Texans  who  had  been  fight- 
ing for  independence,  and  had  rushed  surveyors  at  great  speed 
over  the  very  choicest  lands.  After  stating  this  fact,  Sections 
J  and  K  annulled  all  such  surveys,  and  suspended  the  issuing 
of  patents.30 

But  by  no  means  did  these  annulling  Constitutional  pro- 
visions become  effective.  One  factor  was  lacking  to  make 
them  so,  although  at  the  time  of  their  adoption  it  was  sup- 
posed that  Constitutional  law  was  organic  law.  The  omission, 
it  was  later  discovered,  depriving  them  of  all  force  was,  ac- 
cording to  precedents  established  by  the  Supreme  Court  of 
the  United  States,  the  failure  of  the  Texas  Congress  or  Leg- 
islature to  pass  acts  for  the  enforcement  of  those  provisions. 
The  land  appropriators  vigilantly  saw  to  it  that  no  such  acts 
were  ever  passed.  They  themselves  were  leading  officials  and 
judges;  nearly  all  of  the  Supreme  Court  or  the  county  court 
judges  were  either  land  appropriators  or  were  in  alliance. 
General  J.  T.  Chambers  not  only  was  a  colonization  contrac- 
tor, but  he  was  long  the  Supreme  Judge  of  Texas,  acting  the 
judicial  autocrat. 

In  1837  the  Texas  Congress  passed  a  general  law  making 
donations  to  those  who  had  been  settlers  before  the  date  of 
independence,  in  1836,  and  to  all  soldiers  of  the  war  against 
Mexico  for  independence.  The  enormous  frauds  committed 
under  this  law  are  described  later  in  this  chapter.  The 
20,000,000  acres  of  land  already  granted  officially  by  the  year 
1838  did  not  comprise  those  particular  claims.  They  con- 

29  "Early   Laws   of   Texas,    1831-1845,"   Vol.   I:   207-208.     A    league 
equaled  4,428  acres. 
80  Ibid. 


416  HISTORY   OF   THE    SUPREME    COURT 

sisted  almost  wholly  of  patented  grants  to  colonization  cor- 
porations, and  to  alleged  settlers  under  Spanish  or  Mexican 
contracts  and  titles.  The  colonization  companies  claimed  that 
up  to  the  year  1838  they  had  brought  in  thirty-five  hundred 
families.  Even  if  this  claim  were  true  the  extent  of  land 
accruing  to  the  contractors  would  be  about  4,000,000  acres. 
But  the  claim  was  fictitious.  A  certain  number  of  settlers 
were  in  fact  introduced,  but  the  number  was  greatly  mag- 
nified. 

That  this  was  so  was  evidenced  by  the  general  demand  on 
the  part  of  honest  settlers  for  a  Congressional  investigation. 
It  was  amply  proved  by  the  report  of  a  joint  investigating 
committee  of  the  Texas  Congress  in  1840,  and  by  cases  con- 
stantly coming  up  in  the  Texas  courts.  The  resolution  under 
which  the  joint  committee  was  appointed  declared  that 
"  whereas  we  have  the  evidence  of  the  Constitution  itself  of 
the  existence  of  spurious  claims  to  the  amount  of  eleven  hun- 
dred leagues  of  land  [nearly  5,000,000  acres],  and  there 
is  good  reason  to  believe  that  a  vast  amount  of  fraud  over 
and  above  that  specified  in  the  Constitution  has  been  perpe- 
trated," etc.31 

Disclosures  of  Colossal  Frauds. 

The  evidence  was  overwhelming.  Samuel  M.  Williams  and 
two  associates,  it  appeared,  had  made  a  claim  for  four  hun- 
dred leagues  of  land  in  Nacogdoches,  Red  River  and  Harri- 
son counties,  based  upon  an  alleged  grant  from  the  Mexican 
governor,  on  the  condition  that  they  supply  a  thousand  armed 
men  to  fight  the  Indians.  In  testifying  to  these  facts  John 
P.  Borden,  Commissioner  of  the  Texas  General  Land  Office, 
admitted  that  titles  to  ten  leagues  of  land  were  gratuitously 
and  without  solicitation  made  out  to  himself  (Borden),  and 

31  "  Evidence  in  Relation  to  Land  Titles  —  Taken  Before  The  Joint 
Committee  on  Public  Lands,  Printed  By  Order  of  The  House,  1840 " : 
p.  2. 


UNDER    CHIEF   JUSTICE   TANEY  417 

one  league  to  two  of  his  brothers.  Borden  testified  further 
that  "  it  appears  from  the  record  in  my  office  that  the  whole 
number  of  men  purporting  to  have  been  enlisted  under  the 
contract  of  Williams,  Peebles  and  Johnson  was  forty-one." 
"And  what  of  the  title  papers?"  Borden  was  asked.  He 
declared  that  they  bore  the  clearest  proof  of  having  been 
forged.32  It  appeared  that  Aldrete,  Commissioner  for  giving 
titles  at  Nacogdoches,  was  an  impostor;  that  he  had  no  real 
authority;  and  yet  Borden  testified  that  Aldrete  in  1833-1834, 
had  issued  titles  to  150^2  leagues  of  land  in  Liberty,  Houston 
and  Red  River  counties  to  alleged  colonists.33  And  who,  as 
Commissioner,  had  issued  titles  to  John  T.  Mason  ?  None  other 
than  the  malodorous  Colonel  James  Bowie,  and  on  pretended 
authority  at  that ;  in  the  year  1835  alone  Bowie  had  presented 
Mason  with  titles  to  ninety-five  leagues  of  land  in  Harrison 
and  Nacogdoches  counties.34 

General  T.  J.  Chambers  claimed  to  have  received  sixteen 
leagues  on  one  occasion,  and  twenty-three  leagues  on  another, 
near  Waco  and  in  other  regions  for  "  judicial  services  " ;  Gov- 
ernor Viesca  said  he  had  never  authorized  the  concession, 
yet  titles  were  issued.  George  Aldrich,  a  surveyor,  testified 
that  in  1835  ne  had  surveyed  about  four  hundred  leagues  of 
land;  that  he  was  paid  for  those  surveys  by  Williams,  John- 
son and  Peebles;  and  that  he  was  to  receive  twenty  leagues 
as  compensation  for  making  the  survey.  Aldrich  further  tes- 
tified that  it  was  "  usual  for  surveyors  to  make  surveys  and 
sell  the  field  notes  afterwards  without  having  in  their  posses- 
sion any  order  of  survey."  35  George  A.  Nixon,  Commissioner 
for  issuing  titles,  granted  title,  in  1834-35,  to  eight  hundred 
and  seventy-one  leagues  of  land  in  Libby,  Jefferson,  Jasper, 
Sabine,  Nacogdoches,  San  Augustine,  Houston  and  Mont- 
gomery jcounties,  to  the  Galveston  Bay  and  Texas  Land  Com- 

32  Ibid.,  6. 

33  Ibid.,  7  and  29. 
**Ibid.,  29. 

35  Ibid.,  ii.     The  italics  are  the  present  author's. 


418  HISTORY   OF   THE    SUPREME    COURT 

pany,  on  the  Burnet-Vehlein-Zavala  colonization  contracts. 
Nixon  himself  received  a  present  of  eleven  leagues  by  order 
of  William  H.  Steele,  Title  Commissioner  for  the  Nashville 
colony.30 

E.  L.  R.  Wheelock,  a  surveyor,  testified  that  in  1835  he  ac- 
cused Steele  of  acting  without  authority  in  giving  titles  and 
that  thereupon  Steele  became  greatly  agitated  and  swore. 
Steele  then  produced  a  document  which  he  said  was  his  au- 
thority, but  when  Wheelock  tried  to  get  it  Steele  hurriedly 
hid  it.  Wheelock  further  testified  that  Steele  told  him  that 
he  (Steele)  was  interested  in  the  profits  of  the  Nashville  Com- 
pany. Wheelock  was  invited  "  to  join  them  in  a  combination  to 
let  no  man  who  came  have  land,  unless  it  was  poor  or  refuse 
land,  unless  they  would  let  one  of  the  company  clear  it  out 
on  shares."  37  Steele,  according  to  Wheelock,  offered  the  lat- 
ter a  gift  of  seven  leagues  if  he  would  turn  over  all  his  field 
notes  in  blank,  and  that  Steele  "  added  at  the  same  time,  he 
came  to  Texas  to  make  a  fortune,  and  would  have  it  at  any 
price."  Wheelock  testified  that  he  met  Steele  later  and  that 
Steele  "  declared  ...  I  was  a  fool  I  had  not  followed 
his  advice,  as  him  and  Joseph  L.  Hood  were  rich."  38  Steele, 
it  was  further  testified,  controlled  all  of  the  municipal  officers, 
and  so  ran  his  surveys  completely  round  the  improvements  of 
actual  settlers  as  to  force  them  to  buy  land  from  him.  Whee- 
lock testified  that  he  came  into  possession  of  a  deed  made  out 
in  blank  by  Steele  for  one  sitio  of  land  (equal  to  a  league, 
or  4,428  acres)  ;  Wheelock  turned  it  over  to  the  Texas  Gov- 
ernment "  for  the  purpose  of  enabling  it  to  detect  such 
frauds."  39 

Recalled  as  a  witness,  Borden  gave  an  itemized  list  of  a 
huge  number  of  forged  and  antedated  titles  in  the  Nashville, 
Vehlein,  Burnet,  Zavala,  Cameron  and  Grant  and  other  col- 

36 "  Evidence  in  Relation  to  Land  Titles,"  etc.,  II. 
"Ibid.,  18. 
as  ibid. 
8»  Ibid.,  20. 


UNDER   CHIEF  JUSTICE  TANEY  419 

onies.40  It  will  now  be  observed  how  carefully  these  appro- 
priators  followed  the  tacit  advice  given  by  the  Supreme 
Court  of  the  United  States  in  its  decisions  in  the  Arredondo 
and  Mitchell  cases.  Borden  testified  that  many  of  the  alleged 
grants  deposited  in  the  Land  Office  were  not  originals;  that 
they  were  certified  copies;  and  that  "  it  was  generally  be- 
lieved that  the  originals  were  carried  off  or  destroyed  by-  the 
Commissioners."  Of  the  four  hundred  leagues  (1,771,200 
acres)  granted  at  Nacogdoches  alone,  irrespective  of  the  grants 
elsewhere,  Borden  testified  that  a  large  portion  were  granted 
in  violation  of  both  Mexican  and  Texan  laws  prohibiting 
unauthorized  settlement  of  any  lands  comprehended  within 
twenty  leagues  of  the  limits  of  any  foreign  nation,  or  the 
settlement  of  any  territory  within  ten  leagues  in  a  straight 
line  from  the  Gulf  of  Mexico.  Borden  declared  that  there  was 
absolutely  no  proof  in  the  Land  Office  that  any  authority  for 
their  settlement  existed. 

These  are  a  few  typical  facts  from  the  joint  committee's 
report.  As  a  further  example  of  how  land  was  granted  to 
spurious  colonists  the  case  of  Martin  DeLeon's  colony  will 
suffice.  The  Commissioner  for  that  colony  gave  his  own  son, 
Francisco  DeLeon,  a  grant  of  a  quarter  of  a  league  of  land, 
and  made  an  affidavit  that  Francisco  possessed  all  requisite 
qualifications,  although,  as  a  matter  of  fact,  Francisco  was 
only  a  boy  of  ten  years  at  the  time,  and  was  at  school  in 
Louisiana.  At  the  same  time  Commissioner  DeLeon  granted 
himself  a  sitio  of  land  (4,428  acres)  as  "  the  head  of  a  fam- 
ily." 41 

Naturally,  at  this  point  of  the  narrative,  the  one  question 
obtruding  itself  is:  In  the  face  of  these  proofs  of  glaring 
fraud  did  the  looters  retain  their  loot?  They  did.  The  con- 
secutive records  of  the  Texas  Land  Office  show  that  25,517,- 
391  acres  were  originally  confirmed  under  a  few  Spanish  and 

40  See  the  long  list  he  gave,  Ibid.,  Doc.  No.  13.     , 

41  Case  of  De  Leon  vs.  White,  IX  Texas  Reports,  598. 


420  HISTORY  OF  THE   SUPREME   COURT 

many  alleged  Mexican  titles.  Deducting  several  million  acres 
subsequently  subtracted  or  declared  forfeited,  there  remained 
22,492,507  acres  permanently  alienated  by  means  of  these 
fraudulent  claims. 

These  appropriations  covered  the  richest  and  most  fertile 
parts  of  Texas.  How  was  the  alienation  consummated?  By 
two  methods:  One  device  was  to  induce  the  Legislature  to 
take  no  positive,  effective  adverse  action ;  the  other  to  get  con- 
firmation from  the  courts.42  Judges  Hemphill,  Wheeler, 
Lipscomb  and  others  of  the  Texas  Supreme  Court  had  all 
been  attorneys  for  the  land  appropriators ;  in  fact,  in  a  cer- 
tain case  coming  up  before  them,  several  of  the  judges  had 
been  counsel  for  the  interests  concerned,  and  a  special  judge 
had  to  be  appointed  for  the  occasion.43  These  judges  fully 
accepted  the  doctrine  laid  down  by  the  Supreme  Court  of 
the  United  States  that  the  original  deed  need  not  be  produced ; 
that  a  certified  copy  of  a  copy  was  as  good  as  the  original.4* 
After  the  annexation  of  Texas  to  the  United  States  the  prece- 
dents of  the  Supreme  Court  of  the  United  States  were,  of 
course,  jurisdictional  and  binding.  Thus  the  validation  of 
spurious  grants  comprising  a  large  part  of  22,000,000  acres 
was  based  upon  the  action  of  the  Supreme  Court  of  the  United 
States  in  the  Arredondo  and  Mitchell  cases;  when  the  Texas 

42  See,  Report  of  Texas  House  Judiciary  Committee,  January  4,  1858. 
It  reported  this  fact,  and  declared  that  it  was  well  known  that  "  not 
one  in  twenty  of  these  titles  were  perfected  by  performance  of  condi- 
tions."    It  spoke  of  the  old  defenders  of  their  country  being  driven 
from  home  "  that  the  land  sharks  and  speculators  may  reap  their  har- 
vest of  gain." — "  Official  Journal,  House  of  Rep.,  Texas,  7th  Biennial 
Session,"  470-471. 

43  This  note  appears  in  the  report  of  a  land  case  in  II  Texas  Re- 
ports, 78  (Dec.,  1847)  :    "This  cause  was  tried  before  the  Hon.  R.  T. 
Wheeler,  Ass.  J.  of  the  S.  C.,  and  Thomas  J.  Jennings,  Esq.,  so  con- 
stituted in  consequence  of  Justice  Hemphill  and  Associate  Justice  Lips- 
comb  having  previously  been  counsel  for  the  parties."     In  another  such 
case   (III  Texas  Reports,  248)   Judge  Wheeler  did  not  sit,  "having 
been  of  counsel  below." 

44  See,  Case  of  Paschal  vs.  Perez,  VII  Texas  Reports  (1851),  p.  359, 
etc.,  etc. 


UNDER   CHIEF   JUSTICE   TANEY  421 

judges  were  criticised,  they  pointed  to  precedents  set  by  the 
great  tribunal  at  Washington  as  their  infallible  justification. 

From  whom  did  these  certified  copies  of  copies  emanate? 
From  the  Land  Office  at  Austin.  Of  the  methods  of  the  Land 
Office  we  get  a  clear  glimpse  in  the  suits  of  the  City  of  Gal- 
veston  and  the  State  of  Texas  vs.  Menard.  Michael  B. 
Menard  was  a  conspicuous  member  of  the  Senate  under  the 
Texas  Republic ;  he  was  associated  with  Williams,  Thomas  M. 
League  and  others  in  various  projects.  He  and  League,  for 
example,  were  among  the  incorporators  of  the  Houston  and 
Brazos  Railroad  Company,  Menard  personally  obtained  pat- 
ents for  huge  quantities  of  land  in  many  Texas  districts. 

On  December  9,  1836,  the  Texas  Congress  granted  to 
Menard  one  league  and  one  labor  of  land  on  the  island  of 
Galveston  for  $50,000,  the  funds  being  part  of  his  plunder 
from  his  land  operations.  Galveston  real  estate  was  of  great 
value  even  at  that  early  date ;  it  was  a  principal  sea-port  with 
considerable  commerce.  Menard  organized  the  Galveston  City 
Company,  partitioned  his  land  into  lots,  and  reaped  large 
profits. 

Presently  he  set  up  a  claim  to  the  whole  of  the  "  flats  "  or 
water-front.  The  Land  Office  graciously  "  construed "  his 
claim  so  as  to  present  him  with  an  excess  of  more  than 
1,700  acres  of  water-front  property.  The  Supreme  Court 
of  Texas  in  1859  upheld  that  "  construction."  45  In  its  peti- 
tion to  the  court,  in  1873,  tne  State  of  Texas  averred  that 
"  the  patent  or  deed  was  made  to  contain  this  excess  through 
the  fraudulent  combinations  and  representations  of  M.  B. 
Menard  and  the  Commissioner  of  the  General  Land  Office." 
Largely  on  Marshall's  doctrine  of  acquiescence,  the  court  de- 
cided against  the  State's  action  to  recover ;  the  claim,  said  the 
court,  had  been  recognized  for  thirty  years,  and  that  should 
be  sufficient.40 

45  XXIII  Texas  Reports,  349.    Judge  Wheeler,  having  been  counsel 
for  Menard,  did  not  sit  in  the  case. 

46  XXXVIII  Texas  Reports,  12-35. 


422  HISTORY   OF   THE   SUPREME   COURT 

Everybody  knew  of  the  spurious  nature  of  the  alleged 
grants  and  titles,  yet  the  Texas  courts,  not  always,  but  usu- 
ally, imitated  Marshall's  practice  of  treating  proofs  of  fraud 
as  fiction,  and  they  studiously  followed  his  precedents.  And 
every  well-informed  person  knew,  too,  how  a  large  share  of 
the  capital  that  the  New  York  capitalists  had  used  in  their 
Texas  operations  had  been  obtained.  In  1838  it  was  dis- 
covered that  Samuel  Swartwout,  a  leader  of  Tammany  Hall, 
and  Collector  of  the  Port  of  New  York,  had  stolen  the  enor- 
mous sum  of  $1,222,705.69  from  the  Government,  much  of 
which  theft  had  go'ne  into  Texas  land  speculation  schemes.47 

The  Castro,  Mercer,  Peter  and  Other  Contracts. 

Within  two  years  after  the  disclosure  by  the  Texas  Con- 
gressional joint  committee,  the  Texas  Congress  made  more 
colonization  contracts.  One  of  these  grants  was  made,  in 
1842,  to  Henri  Castro  and  associates,  for  the  introduction  of 
six  hundred  families  within  six  years.  A  second  contract  was 
with  Charles  Fenton  Mercer,  for  the  introduction  of  five 
hundred  families  within  five  years.  The  Peter's  contract  giv- 
ing 10,000  square  miles  was  a  third,  and  Fischer  and  Miller's 
for  the  introduction  of  six  thousand  German  immigrants,  a 
fourth.  Mercer's  and  Peter's  grants  were  in  the  north  cen- 
tral part  of  Texas,  Castro's  extended  from  the  Frio  River  to 
the  Rio  Grande,  and  Fischer  and  Miller's  were  on  the  waters  of 
the  Colorado,  Llano  and  San  Saba  rivers. 

The  conditions  of  none  of  these  grants  were  performed. 
Castro  fell  back  upon  the  old  subterfuge  so  often  successfully 
pleaded  in  the  Supreme  Court  of  the  United  States,  that  In- 
dian hostilities  prevented  him.  In  numerous  cases  in  the 
Texas  courts  it  was  proved  that  Castro  extorted  contracts 
from  all  immigrants  conveying  to  him  and  associates  one-half 

47  House  Ex.  Doc.  No.  13,  Twenty-fifth  Congress,  Third  Session; 
also  House  Report,  No.  313. 


UNDER   CHIEF   JUSTICE   TANEY  423 

of  the  lands  that  they  should  receive.  If  they  refused  they 
were  rejected  as  colonists.48  In  fact,  all  of  the  contractors,  or 
"  empressarios,"  did  the  same.49  Mercer  ("  The  Texas  Asso- 
ciation"), did  not  bring  in  a  single  settler,  and  Peter  and  as- 
sociates (otherwise  the  Texas  Land  and  Immigration  Com- 
pany) shamelessly  violated  their  contracts. 

Apparently  their  contracts  stood  forfeited.  But  in  1850 
and  1852  the  promoters  induced  the  Texas  Legislature  to 
pass  acts  with  various  favorable  provisions,  one  of  which  was 
the  empowering  of  the  local  courts  t(T  adjudicate  claims  and 
decree  grants.  The  argument  used  by  the  companies  —  at 
least  the  public  argument  —  was  based  upon  precedents  of  the 
Supreme  Court  of  the  United  States  that  a  contract  created 
an  express  trust  which  could  not  be  contravened.  Under  the 
acts  of  1850  and1 1852  the  Peter,  Mercer,  Castro  and  Fischer  and 
Miller  companies  received  a  total  of  4,494,806  acres.  A  vast 
number  of  claims  were  allowed  to  fictitious  colonists.  In  his 
message  to  the  Texas  Legislature  on  November  9,  1855,  Gov- 
ernor E.  M.  Pease  stated  that  "  a  large  majority  of  said  cer- 
tificates were  issued  to  young  men  under  seventeen  years  of 
age"  (at  the  time  the  settlement  was  alleged  to  have  been 
made.)  50 

48  See,  Castro  vs.  James,  VII  Texas  Reports,  219-223,  and  Ibid.,  Vol. 
XX :  278. 

40  XV  Texas  Reports,  180-183. 

50  Official  Journal  of  the  House  of  Representatives,  State  of  Texas, 
Seventh  Biennial  Session,  1857:  80-81.  See,  also,  Report  of  S.  Crosby, 
Commissioner  of  the  Texas  General  Land  Office,  Official  Journal  of  the 
Senate,  1856:  149-150.  In  his  report  for  the  years  1900-1902,  Charles 
Rogan,  Commissioner  of  the  Texas  General  Land  Office  stated  (page 
41)  that  an  examination  of  the  Spanish  department  of  the  Land  Office 
showed  that  the  act  of  September  4,  1850,  also  validated  or  confirmed 
private  land  claims  to  the  extent  of  1,100,000  acres,  "  which  are  still 
claimed  and  which  seem  to  have  good  titles."  Among  the  claims  thus 
confirmed,  according  to  Rogan,  was  Jose  B.  Borego's  claim  to  forty- 
seven  leagues ;  "  but,"  reported  Rogan,  "  the  claimants  are  actually 
holding  sixty-four  leagues,  or  286,532  acres."  This  excess,  Rogan 
stated,  the  claimants  have  been  holding  on  doubtful  authority.  An- 
other claim  confirmed  by  the  act  of  1850,  Rogan  reported,  was  that  of 
Juan  J.  Balli,  for  seventy-one  leagues  and  nine  caballerios  (315,362 
acres). 


424  HISTORY   OF    THE    SUPREME    COURT 

Some  of  the  4,494,806  acres  went  to  actual  colonists,  but 
by  far  the  greatest  portion  remained  in  the  ownership  of  the 
four  promoting  corporations.51  Thus,  under  the  Castro  con- 
tract, 879,920  acres  were  given  to  alleged  colonists,  and  1,088,- 
ooo  acres  to  the  company. 

Official  documents  gave  an  appalling  enough  picture  of  how 
at  least  26,000,000  acres  of  the  richest  Texas  lands  were 
literally  stolen,  but  it  was  reserved  to  United  States  Senator 
Sam  Houston  to  make  public  further  details  of  how  the  thefts 
were  accomplished.  General  Houston  had  been  President  of 
the  Republic  of  Texas;  and  when  on  Febfuary  3,  1859,  he 
made  an  extraordinary  statement  of  facts  in  the  United  States 
Senate,  even  reading  undeniable  documents  showing  how  the 
land  appropriators  had  carried  on  their  operations  and  how 
they  boasted  of  being  able  to  corrupt  the  Supreme  Court  of 
the  United  States,  his  disclosures  were  accepted  as  the  au- 
thoritative utterances  of  a  man  who  knew  his  facts.  His 
speech,  in  fact,  made  such  a  profound  sensation  that  it  was 

51  For  a  time  the  capitalists  owning  the  Mercer  claim  were  satisfied 
with  the  691,840  acres  that  they  received.  But  twenty-five  years  later, 
they  set  up  a  claim  to  not  less  than  six  thousand  square  miles.  Among 
the  assertions,  in  reply  to  this  claim,  made  by  the  State  of  Texas,  were 
these  charges :  That  the  contract  was  fraudulently  obtained  and  that 
the  map  submitted  by  the  Mercer  Company  purporting  to  bear  date  of 
May  I,  1845,  appeared  to  be  of  recent  date ;  had  been  surreptitiously 
deposited  in  the  office  of  the  Secretary  of  State,  without  his  knowledge, 
and  took  in  about  three  thousand  square  miles  more  than  the  contract 
actually  covered. 

If  this  new  claim,  or  any  part  of  it,  had  been  allowed,  it  would  have 
conflicted  with  domains  owned  by  railroad  corporations.  Times  had 
changed ;  the  judges  on  the  bench  in  1882  were  almost  exclusively  for- 
mer railroad  attorneys.  The  Supreme  Court  of  the  United  States,  in 
1883,  threw  the  case  out  of  court,  saying  that  there  was  no  satisfactory 
evidence  that  Mercer  and  associates  ever  introduced  directly  or  indi- 
rectly a  single  family  into  Texas.  "  Have  they  spent  any  money  in  the 
enterprise  ? "  Justice  Miller  went  on.  "  A  feeble  attempt  to  show  an 
outlay  of  $12,000  or  $15,000  is  made,  but  by  no  means  successfully." — 
Case  of  Hancock  vs.  Walsh  (Commissioner  of  the  Texas  General  Land 
Office),  III  Wood's  Reports,  351-367,  and  Case  of  Walsh  vs.  Preston, 
109  U.  S.  Reports,  318.  But  this  decision  did  not  take  away  the  691,- 
840  acres  already  obtained  by  the  Mercer  Company. 


UNDER   CHIEF   JUSTICE   TANEY  425 

not  allowed  to  remain  embalmed  in  the  soon- forgotten  pages 
of  the  Congressional  Globe,  as  most  speeches  of  members  of 
Congress  were,  but  was  published  in  book  form.52 

Judge  Watrous'  Particular  Activities. 

The  circumstances  leading  up  to  Senator  Houston's  revela- 
tions were  as  follows : 

The  local  attorney  for  the  Peter's  colonization  company  had 
been  John  C.  Watrous.  He  was,  it  seems,  not  only  a  shrewd 
and  unscrupulous  lawyer,  but  he  was  also  a  capitalist  pro-, 
moter,  and  was  associated  with  Williams,  Menard,  McKinney, 
Thomas  M.  League  and  other  members  of  the  group  so  dili- 
gently and  successfully  plundering  Texas.  Also  he  was  one 
of  the  most  adroit  lobbyists  in  the  Texas  Legislature;  one  of 
the  measures  that  he  had  lobbied  through  was  an  act  in  1841 
incorporating  himself  and  others  of  Texas  and  London,  Eng- 
land, as  the  Texas  Trading,  Mining  and  Emigrating  Company 
for  the  purpose  of  purchasing  lands,  importing  immigrants, 
etc.53  Watrous  had  a  hand  deep  in  a  large  number  of  great 
frauds  then  being  promoted:  colonization  schemes,  alleged 
Mexican  private  grants,  and  spurious  certificates  alleged  to 
have  been  granted  to  Texan  soldiers  and  to  settlers. 

In  fact,  he  helped  to  organize  a  company  to  profit  from  the 
traffic  in  immense  numbers  of  these  fraudulent  certificates. 
This  company  was  composed  principally  of  Watrous,  ex-Con- 
gressman Joseph  L.  Williams,  J.  N.  Reynolds  (a  New  York 
politician  and  lobbyist  who  received  subsidies  from  the  large 
cotton-mill  firm  of  Lawrence,  Stone  &  Company,  of  Fall 
River,  for  lobbying  tariff  measures  through  Congress  by  brib- 

52  The  Land  Conspiracies  of  Texas,  etc.  Speech  of  Senator  Sam 
Houston,  of  Texas,  Exposing  the  Malfeasance  and  Corruption  of  John 
C.  Watrous,  Judge  of  the  Federal  Court  in  Texas,  and  Of  His  Con- 
federates, Delivered  In  The  Senate  of  the  United  States,  Feb.  3,  1859." 
—  N.  Y.,  Pudney  &  Russell,  Printers,  1860. 

£3  "  Laws  of  the  Republic  of  Texas,  Fifth  Congress,  1841  ":  78-79. 


426  HISTORY   OF   THE   SUPREME   COURT 

ery  54),  and  J.  S.  Lake,  an  Ohio  and  New  York  City  politician 
banker  and  broker  who  had  plundered  the  Wooster  Bank 
and  the  public  of  $936,398,  much  of  which  he  had  lost  in 
speculations.55  Associated  with  these  men  were  other  Texas 
and  New  York  City  capitalists;  the  headquarters  of  the  com- 
pany was  in  New  York  City. 

What  the  clique  especially  and  most  pressingly  wanted  was 
a  judge  of  their  own  in  the  United  States  District  Court; 
although  the  Texas  judges  could  be  generally  depended  upon, 
still  they  often  represented  conflicting  interests.  Much  more 
satisfying  would  be  a  judge  absolutely  and  unalterably  bound 
up  in  interest  with  the  clique.  Largely  through  the  influence 
of  Caleb  Cushing,  of  Massachusetts,  a  puissant  figure  at  Wasl  - 
ington,  and  subsequently  Attorney-General  of  the  Unitec. 
States,  the  clique,  on  May  29,  1846,  shortly  after  the  annexa- 
tion of  Texas  to  the  United  States,  succeeded  in  having  Wat- 
rous  appointed  judge  of  the  U.  S.  District  Court  in  Texas. 

Now,  indeed,  the  land  grabbers  were  sure  of  having  their 
own  way.  True,  Texas  retained  control  of  its  lands',  and 
the  Texas  courts  were  supposed  to  have  complete  jurisdic- 
tion. But  by  some  member  of  the  clique  feigning  or  having  a 
residence  in  some  other  State,  collusive  suits  could  be  carried 
on  and  thrown  into  the  United  States  District  Court,  which 
would  be  Watrous.  This  is  what  happened,  as  prearranged. 
When  Watrous  went  on  the  bench,  two  lawyers,  Ovid  F. 
Johnson  of  Pennsylvania,  and  William  G.  Hale  of  New  Hamp- 
shire, were  imported  into  Texas  to  take  charge  of  the  clique's 
law  affairs.  To  them  Watrous  turned  over  the  Peter's  col- 
ony, and  other  legal  business.  Through  Robert  Hughes,  his 
confidential  adviser,  WTatrous  was  also  interested  in  the  Pow- 
ers and  Hewitson  grant,  covering  a  large  body  of  land  on  the 
coast,  west  of  Galveston.  Hughes,  it  may  be  remarked,  had 

54  Report    No.   352,    Reports   of    Committees,    Fifty-Third    Congress, 
First  Session,  Vol.  Ill :  20,  etc. 

55  "  De  Bow's  Review,"  1848 :  262-263.     Senator  Houston  gave  details 
of  Lake's  career. 


UNDER  CHIEF   JUSTICE  TANEY  427 

been  a  surety  in  bond  for  William  M.  Gwin,  former  Marshall 
of  southern  Mississippi,  whose  implication  in  enormous  land 
frauds  has  already  been  described. 

Texas  Legislature  Denounces  Watrous. 

On  March  20,  1848,  a  joint  resolution  of  the  Texas  Leg- 
islature declared  that  Judge  Watrous  had  given  important 
decisions  in  cases  in  which  he  was  interested,  and  that  it  also 
believed  that  Judge  Watrous  "  has,  while  in  office,  aided  and 
assisted  certain  individuals,  if  not  directly  interested  himself, 
in  an  at'r.mpt  to  fasten  upon  the  State  one  of  the  most  stu- 
pendous frauds  ever  practised  upon  any  country  or  any  peo- 
ple, tl'e  effect  of  which  would  be  to  rob  Texas  of  millions  of 
acres  of  her  public  domain.  .  .  ."  Judge  Watrous  was 
asked  to  resign.  He  ignored  both  the  denunciation  and  the 
req'j'jst. 

One  of  the  suits  begun  in  Watrous'  court  was  an  action  to 
have  fraudulent  certificates  validated.  The  case  went  up  to 
tfie  Supreme  Court  of  the  United  States  which  in  1850  de- 
clined to  validate  them,  saying  that  "  immense  numbers  of 
these  certificates  were  put  in  circulation,  either  forged  or 
fraudulently  obtained,  which,  if  confirmed  by  surveys  or  pat- 
ents would  soon  have  absorbed  all  of  the  vacant  lands  of  the 
Republic."  B6  This  decision  caused  consternation  among  the 
clique;  and,  as  the  sequel  indicated,  they  now  began  to  exert 
"  influences  "  to  attempt  to  win  over  the  Supreme  Court  of 
the  United  States. 

In  1855,  the  Adjutant-General's  office  at  Austin,  where 
many  of  the  land  archives  were  stored,  was  set  on  fire  and 
destroyed  by  incendiaries.  This  act,  Governor  Pease  re- 
ported, "  has  destroyed  most  of  the  original  evidences  upon 
which  bounty  and  donation  certificates  were  issued."  "  On 

50  Case  of  Thomas  M.  League  vs.  John  De  Young,  Howard's  Re- 
ports, Vol.  XI :  201. 
57  Journal  of  the  (Texas)  Senate,  Sixth  Legislature,  1855 :  42. 


428  HISTORY  OF   THE   SUPREME   COURT 

July  29,  1856,  Stephen  Crosby,  Commissioner  of  the  Texas 
Land  Office,  reported  that  an  attempt  had  been  made  to  de- 
stroy the  Land  Office  building  by  fire.58 

The  reason  lay  in  a  desperate  attempt  to  hinder  a  select  com- 
mittee of  the  Texas  Senate  which  had  been  investigating  the 
matter  of  land  certificates  alleged  to  have  been  granted  to 
settlers,  head  of  families,  and  to  former  soldiers  in  the  Texan 
army.  This  committee  reported  voluminously  on  January  21, 
1856,  that  the  Boards  of  Traveling  Commissioners  which  had 
been  originally  appointed  in  1837  to  determine  who  was  en- 
titled to  land  had  grossly  betrayed  their  trust.  The  com- 
mittee recited  in  detail  that  not  only  were  enormous  numbers 
of  forged  and  otherwise  fraudulent  certificates  issued  in  the 
name  of  persons  who  never  existed,  and  to  soldiers  long  since 
dead,  but  that  the  officials  and  courts  knew  of  the  fraudulent 
nature  of  most  of  the  certificates.59 


Watrous'  Impeachment  Demanded. 

In  the  same  year  that  this  report  was  submitted  the  Texas 
Senate  passed  a  resolution  demanding  the  impeachment  of 
Judge  Watrous.  "  Said  judge,"  the  resolution  read,  "  is  guilty 
of  attempting,  by  contriving  and  carrying  on  a  made-up  suit 
in  his  own  court,  to  validate  in  the  same,  over  twelve  hun- 
dred fraudulent  land  certificates,  claimed  by  himself,  and 
his  '  compeers,'  and  of  a  class,  in  all,  the  enormous  amount 
of  24,331,764  acres  —  of  fraudulent  certificates,  thereby  at- 
tempting to  deprive  his  country  of  a  vast  domain,  besides  caus- 
ing the  State  the  cost  of  additional  counsel  in  defending  herself 
against  such  enormous  precluded  spoliations ;  and,  on  discov- 
ery of  his  interests  in  said  class  of  certificates  being  made,  said 
judge  transferred  said  suit  for  determination  to  the  United 

58  "Official  Journal,  Senate  of  the  State  of  Texas,  Adjourned  Ses- 
sion, 1856":  p.  150. 

59  Journal  of  the  (Texas  Senate)  Sixth  Legislature,  1856:  387-389, 


UNDER   CHIEF  JUSTICE  TANEY  429 

States  Court  in  another  State,  after  shaping  the  case,  and 
influencing  that  court  in  such  a  manner  as  to  obtain  his  desired 
judgment."  A  similar  resolution  was  passed  in  the  next  year 
by  the  Texas  House.60 

These  resolutions  were  passed  under  great  pressure.  Gen- 
uine settlers  were  threatening  violent  retaliation  if  the  frauds 
succeeded ;  and  at  a  time  when  men  wore  their  guns  and  used 
them  these  threats  were  not  dismissed  as  idle  words.  More- 
over, the  schemes  of  the  Watrous  clique  interfered  with  those 
of  certain  railroad,  real-estate,  ranch  and  other  corporations 
which  combined  all  of  their  power  and  influence  to  depose 
him.61 

In  1857  Jacob  Mussina  submitted  a  memorial  to  Congress 
asking  for  the  impeachment  of  Watrous.  Mussina  claimed 
an  interest  in  titles  to  the  cities  of  Brownsville,  Point  Isabel 
and  adjacent  lands.  He  recounted  that  the  Watrous  clique, 
however,  had  turned  up  with  an  alleged  old  grant,  called  the 
Cavazos  grant,  and  that  under  this  they  alleged  ownership 
of  250,000  acres,  including  the  towns  of  Brownsville  and  Point 
Isabel  and  numerous  villages  and  ranches,  as  also  Govern- 
ment sites  and  improvements.  Mussina  further  charged  that  a 
fraudulent  trumped-up  case  was  brought  by  William  G.  Hale 
and  his  partner,  and  that  after  deciding  the  case  against  Mus- 
sina, and  influencing  other  United  States  judges,  Judge  Watrous 
ordered  Mussina's  property  sequestrated.  Mussina  submitted 
an  impressive  series  of  facts  from  the  court  records  to  prove 
his  charges.62 

At  the  same  time,  Eliphas  Spencer,  of  Texas,  submitted  a 
like  memorial  showing  that  WatrouSj  Williams,  League,  John 

80  "  Official  Journal  of  the  Senate,  of  the  State  of  Texas,  Adjourned 
Session,  1856":  p.  399,  and  Ibid  of  the  House,  1857:  pp.  420-424. 

61  The  railroad  companies  secured  approximately  32,400,000  acres  in 
Texas.  Much  of  this  was  obtained  in,  or  after,  the  year  1854.  Manu- 
facturing and  navigating  corporations,  then  and  subsequently,  obtained 
a  gift,  in  total,  of  4,061,000  acres. 

02  Reports  of  Committees,  First  Session,  Thirty-fifth  Congress,  1857- 
58,  Report  No.  54:  2-10. 


430  HISTORY   OF   THE    SUPREME   COUXT 

W.  Lapsley,  Menard  and  others  were  interested  in  pushing  a 
claim  for  eleven  leagues,  based  upon  an  alleged  old  grant  to 
Thomas  de  La  Vega.  Spencer  accused  Williams  of  forging 
the  power  of  attorney  from  La  Vega,  and  he  detailed  how 
Judge  Watrous  became  secretly  interested  in  the  claim  and 
how  Watrous  had  fraudulently  and  corruptly  decided  the 
case  and  had  influenced  other  judges  to  act  similarly03  This 
particular  eleven-league  tract  in  dispute  was  merely  a  part  of 
thirty-three  leagues,  or  180,000  acres,  alleged  to  have  been 
granted  to  La  Vega  and  De  Aguirres  by  the  Mexican  Gov- 
ernment. 

Watrous  Haled  up  on  Charges. 

The  House  Committee  on  the  Judiciary  on  February  2, 
1857,  recommended  that  action  be  taken  on  the  charges  against 
Watrous.  Five  days  later,  the  House  of  Representatives  as  a 
body,  determined,  by  a  vote  of  156  to  32,  to  proceed  against 
Watrous  in  hearing  the  charges  on  which  to  determine  whether 
he  should  be  definitely  haled  up  for  impeachment.64 

Powerful  influences  now  exerted  themselves  to  save  Wat- 
rous. Caleb  Gushing  came  forward  to  act  as  Watrous'  attor- 
ney. It  was  an  era  when  corruption  was  rampant  at  Washing- 
ton; when  committees  of  Congress  were  constantly  reporting 
testimony  that  in  tariff,  railroad  and  other  legislation,  large 
amounts  in  bribery  had  been  expended  and  received.65  No 
one  can  read  the  elaborate  testimony  in  Watrous'  impeach- 
ment action  without  feeling  convinced  that  the  charges  were 
more  than  adequately  proved,  notwithstanding  the  fact  that 
most  of  the  witnesses  summoned  were  Texas  lawyers,  and 
they  demurred  at  testifying. 

The  vote  of  the  committee  hearing  the  charges  was  divided 

03  Report  No.  54,  First  Session,  Thirty-fifth  Congress,  11-12. 

G4  The  Congressional  Globe,  Part  I,  Third  Session,  Thirty- fourth 
Congress,  pp.  542  and  627-628. 

05  For  the  array  of  specific  facts,  see  the  "  History  of  the  Great 
American  Fortunes,"  Vols.  II  and  III. 


UNDER   CHIEF   JUSTICE   TANEY  431 

evenly.  This,  of  course,  ended  the  move  to  impeach  him.  The 
committee,  however,  handed  in  both  majority  and  minority  re- 
ports. The  majority  report  apologetically  said  that  the  evi- 
dence was  insufficient,  because  of  the  reluctance  of  the  wit- 
nesses to  tell  all  that  they  knew.  The  four  minority  members 
reported  that  the  charges  stood  proved ;  that  Judge  Watrous 
with  other  persons  had  embarked  in  schemes  involving  im- 
mense tracts  of  land ;  that  fraudulent  and  collusive  suits  were 
brought  in  his  court ;  that  he  had  procured  improper  testimony  ? 
and  that  he  had  decided  those  suits  in  his  own  favor.00 


General  Sam  Houston's  Denunciation. 

The  scandal  resulting  from  Judge  Watrous'  escape  from 
impeachment  was  the  cause  of  Senator  Houston's  indignant 
speech  of  February  3,  1859.  Inasmuch  as  the  facts  and  doc- 
uments in  that  speech  comprise  a  volume  in  themselves,  ref- 
erence can  be  made  here  to  certain  cogent  and  relevant  parts 
only.  Senator  Houston  gave  the  history  of  the  fraudulent 
operations  of  Watrous  and  his  partners  in  minute  detail,  cit- 
ing court  records  and  other  documents,  and  reading  the  actual 
correspondence  of  different  members  of  the  clique  with  one 
another.  Speaking  of  the  Peter's  colonization  syndicate 
(which  acquired  as  we  have  related,  1,088,000  acres  vested  in 
its  own  name,  and  879,920  acres  mostly  in  the  names  of  al- 
leged settlers),  Sam  Houston  proceeded: 

"  It  further  appears  that  the  Hon.  Caleb  Gushing  was  em- 
ployed as  the  attorney  of  this  association,  which  is  known  to 
have  numbered  among  its  members  men  of  the  highest  station 
and  most  powerful  influence  in  the  land ;  and  that  when  ele- 
vated to  the  high  office  of  Attorney-General  of  the  United 
vStates,  he  gave  an  extra-judicial  opinion  in  favor  of  the  claim 
of  the  company  which  will  be  found  in  the  published  '  Opin- 

60  Reports  of  Committees,  First  Session,  Thirty-fifth  Congress,  1857- 
58,  Report  No.  54:  14. 


432  HISTORY   OF   THE   SUPREME   COURT 

ions  of  the  Attorney-General.' OT  I  mention  this  only  to  illus- 
trate the  ramifications  of  the  influences  brought  to  sustain 
Judge  Watrous.  .  .  ."  It  may  here  be  observed  that  this 
was  the  same  Caleb  Gushing  who  probably  then,  and  certainly 
later,  was  so  influential  in  pushing  the  appointment  of  Su- 
preme Court  Justices. 

Then  came  an  astonishing  revelation,  directly  reflecting  upon 
the  integrity  of  the  Supreme  Court  of  the  United  States. 

Williams'  Letter  on  "Striking"  the  Supreme  Court. 

"  It  ought  to  have  been  supposed,"  Senator  Houston  went 
on  a  little  later,  in  describing  the  conspiracy  to  get  fraudulent 
land  certificates  validated,  "  that  after  the  judgment  of  the 
supreme  court  of  Texas,  the  high  court  of  appeals,  and  finally, 
after  the  decision  of  the  Supreme  Court  of  the  United  States, 
against  the  validity  of  the  certificates,  further  efforts  on  the 
part  of  the  company  would  have  been  hopeless.  But  what 
vitality,  what  ramifications,  what  resources  must  they  have 
possessed,  when  we  find  them  daring  at  the  last,  as  I  shall 
show,  to  anticipate  exerting  an  influence  on  the  United  States 
Supreme  Court  itself!  This  certainly  was  a  fitting  climax 
to  audacity  and  assertion  of  power.  Thus  we  find  this  branch 
of  the  scheme  of  the  conspirators  expiring  with  an  adventur- 
ous and  desperate  effort  to  retrieve  their  fortunes  by  improper 
influences  with  the  courts;  the  last  effort  still  characteristic, 
and  still  significant  of  the  comprehensive  grasp  and  connec- 
tions of  this  most'  extraordinary  combination. 

"  As  exposing  the  honest  proposition  of  exerting  an  influ- 

67  See,  "Opinions  Of  The  Attorney-General  for  the  U.  S.,"  Vol. 
VIII :  522-546.  The  question  concerned  the  point  whether  an  act 
passed  by  the  Texas  Legislature,  in  1852,  granting  to  the  Peter's  con- 
tractors (The  Texas  Land  and  Emigration  Company)  1700  sections  of 
land,  to  be  located  where  it  chose,  was  constitutional.  As  Attorney- 
General,  Gushing  reported  that  the  act  was  constitutional,  and  that  the 
Peter's  Company  had  rights  which  it  could  assert  in  the  Supreme  Court 
of  the  United  States. 


UNDER    CHIEF   JUSTICE   TANEY  433 

ence  on  the  Supreme  Court  of  the  United  States,  I  will  here 
read  a  letter  from  Mr.  Joseph  L.  Williams  on  this  subject,  to 
whom,  it  appears,  was  and  is  allotted  the  Washington  branch 
of  the  company's  operations." 

The  letter  was  dated  Washington  City,  November  I,  1851. 
Senator  Houston  did  not  state  the  name  of  the  person  to  whom 
it  was  addressed.  The  last  paragraph  of  Williams'  letter 
read: 

"  I  find  much  of  your  matter  of  reliance  in  the  big  suit  in 
Bibb's  reports.  This  casually  led  me  the  other  day  to  bring 

the  case  to  the  notice  of .  He  seems  perfectly  familiar 

with  every  precedent  and  doctrine  applicable  to  this  case,  and 
he  says  it  is  quite  impossible  for  the  Supreme  Court,  on  de- 
liberate review  and  consideration,  to  abandon  right,  reason, 
and  casual  law,  on  account  of  one  casual  act  of  stultification 
at  the  last  term.  I  shall  not  omit  the  part  of  striker  unth  cer- 
tain members  of  the  court,  which  I  told  you  I  ivould  see  to. 
I  am  already  here  for  the  purpose.  I  will  persuade  Catron, 
of  Tennessee,  to  take  the  case  under  his  especial  charge."  68 

To  act  the  part  of  a  "  striker,"  meant  to  influence  unduly  or 
corruptly.09  Of  this  letter  one  of  two  constructions  is  allow- 
able: Either  Williams  was  vapidly  boasting,  or  he  knew  his 
ground.  He  stated  that  he  had  gone  to  Washington  for  the 
particular  purpose  of  influencing  "  certain  members  of  the 
court."  This  pointed  statement,  by  itself,  was  serious 
enough.  But  he  specifically  mentioned  Associate  Justice  Ca- 
tron as  the  one  especial  member  whom  he  would  persuade  to 
take  supervision  of  the  case, —  signifying  that  he  looked  to 
Catron  particularly  to  see  to  it  that  a  favorable  decision  should 
be  rendered. 

If  untrue,  the  statements  in  Williams'  letter  were  malignant 

08  The  Congressional  Globe,  Part  I,  Second  Session,  Thirty-fifth  Con- 
gress, 1858-59:  p.  775.  The  italics  appear  in  the  Congressional  Globe. 

oa  Thus,  a  "  strike "  bill  is  one  introduced  in  a  Legislature  with  a 
definite  purpose  of  forcing  the  corporation  or  individual  to  whom  it  is 
hostile  to  yield  tribute  for  its  defeat  or  suppression. 


434  HISTORY  OF  THE   SUPREME   COURT 

and  inexcusable  attacks  not  only  upon  Justice  Catron  but  upon 
the  whole  Supreme  Court.  Were  that  so,  the  Supreme  Court 
would  have  been  justified  in  haling  Williams  up  for  libel  and 
punishing  him  severely,  and  Justice  Catron  should  have  imme- 
diately instituted  suits,  civilly  and  criminally. 

Supreme  Court  Did  Not  Reply. 

But  no  such  development  ever  happened.  Senator  Hous- 
ton's speech  was  given  wide  publicity ;  and  published  in  the 
permanency  of  a  volume,  it  had  a  considerable  circulation. 
Instead  of  replying,  all  of  the  parties  inculpated  in  that  speech 
seemed  anxious  to  hush  the  matter  as  soon  as  possible.  In 
concluding  his  remarks  Senator  Houston  said  that  elaborate 
as  were  the  details  he  had  given  they,  after  all,  were  only  a 
sketch  of  the  whole  of  the  facts,  and  he  intimated  that  he  had 
more  in  reserve.  Evidently,  the  prudent  counsel  prevailed 
of  keeping  "  dignified  silence,"  and  not  pushing  him  too  far  by 
making  any  retort  calculated  to  arouse  him  again.70 

Senator  Houston,  it  was  clear,  was  holding  back  much  strik- 
ing information.  These  suppressed  facts,  exposing  the  in- 
consistency of  the  Supreme  Court  of  the  United  States  in  val- 
idating certain  private  land  claims,  while  rejecting  others, 
would,  if  published  in  sequence,  have  reflected  severely  not 
only  upon  many  of  Houston's  most  distinguished  colleagues  in 
the  Senate,  but  upon  Congress  itself. 

Thus  for  example,  United  States  Senator  Judah  P.  Benja- 
min of  Louisiana,  one  of  the  most  powerful  politicians  in  the 

70  Here  we  shall  leave  the  subject  of  fraudulent  fTexas  land  certifi- 
cates. By  1863,  an  aggregate  of  41,956,202  acres  in  Texas  had  been 
patented  to  individuals  or  corporations.  This  amount  did  not  include 
the  22,492,057  acres  patented  under  alleged  Spanish  and  Mexican  grants 
and  contracts.  How  much  of  the  41,956,202  acres  was  based  on  fraudu- 
lent certificates,  it  is  impossible  to  say.  "  Many  of  them,"  reported  a 
Commissioner  of  the  General  Land  Office  later,  "  were  subsequently 
established  apparently  through  judicial  decree.  Many  of  these  decrees 
were  not  written  in  a  courthouse." 


UNDER   CHIEF   JUSTICE   TANEY  435 

country,  was  at  that  very  time  introducing  a  bill  to  validate 
a  number  of  private  land  claims  for  some  of  which  he  had  been 
attorney.  These  particular  claims  could  not  be  confirmed  by 
the  Supreme  Court  of  the  United  States.  They  had  been  ex- 
plicitly declared  void  by  an  act  of  Congress,  in  1804,  as  having 
been  fraudulently  granted  by  Governor  Morales,  at  the  very 
period  when  the  United  States  was  taking  over  the  sovereignty 
of  Louisiana  and  parts  of  what  was  called  West  Florida,  and 
when  the  United  States  claimed  jurisdiction  over  the  section 
in  which  the  alleged  grants  were  made. 

Senator  Benjamin  had  argued  in  court  as  counsel  for  some 
of  these  claimants.  In  1858  Senator  Benjamin,  as  chairman 
of  the  Senate  Committee  on  Private  Land  Claims,  submitted 
a  bill  in  behalf  of  the  claimants,  which  bill  became  a  law  on 
June  22,  1860.  Among  the  claims  validated  by  this  act  were 
the  Reynes  claim  to  40,000  arpents  in  the  Baton  Rouge  dis- 
trict, Louisiana ;  several  other  claims  respectively  embracing 
32,000  and  40,000  arpents,  in  the  same  State ;  and  a  consider- 
able number  of  other  claims  in  Louisiana,  Florida,  Arkansas, 
Missouri  and  other  States.  These  claims,  confirmed  by  act 
of  Congress,  of  June  22,  1860,  embraced  an  aggregate  of  about 
600,000  acres.71 

Similar  circumstances  surrounded  the  De  Bastrop  claim. 
This  was  an  alleged  grant  made  by  Carondelet  in  1796  or  1797, 

71  See  the  remarkable  history  of  these  claims,  and  of  their  final  val- 
idation, in  U.  S.  vs.  Lynde,  XI  Wallace's  Reports,  632-647,  in  which 
Senator  Benjamin's  activities  are  clearly  described.  There  was  a  close 
identity  of  interest  between  the  land  appropriators  and  the  original 
railroad  promoters ;  they  were  often  the  same  persons.  Senator  Benja- 
min was  one  of  the  foremost  promoters  of  the  New  Orleans,  Jackson 
and  Great  Northern  Railroad,  and  was  chairman  of  its  board  of  di- 
rectors. (See,  Butler's  "Judah  P.  Benjamin,"  pp.  134-136.)  As  for 
John  W.  Lapsley,  partner  and  accomplice  of  Watrous,  he  was  president 
of  the  Alabama  and  Tennessee  Railroad  Company  (see,  53  Alabama 
Reports,  257)  which  received  a  large  land  grant,  later  confirmed  by 
act  of  Congress,  May  23,  1872.  Lapsley  was  also  a  director  of  the 
Selma  and  Gulf  Railroad  Company  (45  Alabama  Reports,  698).  Many 
of  the  railroad  promoters  obtained  such  sums  as  were  invested  by  them 
from  land  frauds. 


436  HISTORY   OF   THE   SUPREME   COURT 

to  Baron  De  Bastrop,  of  a  tract  of  twelve  leagues  square,  or 
1,016,264  arpents,  in  the  Ouchita  and  Bayou  Siard  districts, 
Louisiana.  In  1807,  Edward  Livingston  bought  a  sixteenth 
interest  in  the  claim  and  sold  a  large  part  of  it  to  Stephen 
Wante;  Robert  R.  Goelet  obtained  other  parts,  and  Stephen 
Girard  bought  more  than  200,000  acres  of  the  claim.  The 
Board  of  Land  Commissioners  rejected  the  claim,  and  al- 
though potent  influences  assiduously  tried  to  get  a  confirma- 
tion from  Congress,  that  body  for  fifty  years  refused  to  con- 
sider it. 

Girard  bequeathed  his  estate  to  the  cities  of  New  Orleans 
and  Philadelphia.  These  cities  brought  suit  to  have  the  claim 
validated,  and  succeeded  in  the  lower  courts.  When  the  case 
came  up  on  appeal  before  the  Supreme  Court  of  the  United 
States,  in  1850,  Attorney-General  Crittenden  contended  that 
(supposing  that  a  concession  to  De  Bastrop  had  been  really 
made),  the  claimants  not  only  did  not  produce  the  original 
concession  but  failed  to  bring  forward  an  authentic  copy  and 
that  they  did  not  even  allege  the  loss  of  the  original.  On  these 
grounds  the  Supreme  Court  (Justice  Catron  writing  the  ma- 
jority opinion)  reversed  the  lower  court  and  rejected  the 
claim.72  But  it  was  validated  by  act  of  Congress,  in  1854. 

At  the  same  time  Justice  Catron  wrote  another  majority 
opinion,  rejecting  the  Boisdore  claim,  alleged  to  have  been 
granted  by  Governor-General  Miro  in  1783,  in  what  is  now 
the  State  of  Mississippi,  as  "  a  grant  of  land  for  a  cow  pas- 
ture." The  holders  of  this  alleged  grant  claimed  an  area  of 
from  100,000  to  400,000  acres.  Notwithstanding  the  fact 
that  Boards  of  Land  Commissioners  and  Congress  had,  for 
forty  years,  consistently  refused  to  recognize  the  claim  as  cov- 
ering more  than  1280  acres,  the  claim  in  full  was  validated 
by  the  U.  S.  District  Court  in  1845.  The  Government  ap- 

72  See,  Case  of  U.  S.  vs.  Cities  of  Philadelphia  and  New  Orleans,  XI 
Howard,  609-661.  Justices  McLean,  Wayne,  McKinley  and  Grier  dis- 
sented. See,  also,  U.  S.  vs.  Louise  Livingston,  widow  of  Edward 
Livingston,  and  U.  S.  vs.  Callender,  Ibid.,  662-663. 


UNDER   CHIEF   JUSTICE   TANEY  437 

pealed.  When  the  case  was  argued  before  the  Supreme  Court 
of  the  United  States  in  1850,  Attorney-General  Crittenden 
sardonically  exclaimed,  "  Boisdore  never  dreamed  of  such 
a  magnificent  principality  for  his  cow  pen  as  is 
claimed  . !  "  73 


The  Court's  Record  Did  Not  Belie  Houston. 

Justice  Catron's  decisions  in  1842,  in  a  number  of  Florida 
land  claims  —  the  Low,  Hanson,  Atkinson  and  others  —  val- 
idating various  claims  of  15,000  and  16,000  acres  each  — (XVI 
Peters,  166  etc.) — had  been  subjected  to  sharp  criticism. 
Contested  by  the  Government,  those  claims  had  been  confirmed 
by  the  Supreme  Court  of  the  United  States,  although  some  of 
the  claimants  had  not  even  taken  the  trouble  to  be  represented 
by  counsel.  But  the  majority  opinions  (cited  above)  deliv- 
ered by  Justice  Catron  and  his  dissenting  opinion  in  the 
California  land  cases,  would  not  seem  to  justify  the  implifica- 
tion  that  he,  at  least,  was  tampered  with  or  was  susceptible 
to  illicit  influences.  Perhaps  there  were  underlying  develop- 
ments and  circumstances  like  those  of  the  Dred  Scott  case, 
of  which  no  hint  appears  in  the  formal  records.  But  what 
does  appear  in  the  records  indicates  (so  far  as  the  Supreme 
Court  as  a  whole  was  concerned)  the  drift  of  matters  lucidly 
enough. 

When  Mussina  applied  to  the  Supreme  Court  of  the  United 
States,  in  December,  1857,  for  a  mandamus  compelling  Judge 
Watrous  to  allow  him  an  appeal  in  the  Cavazos  case,  the  Su- 

73  U.  S.  vs.  Boisdore,  XI  Howard,  63-104.  Justices  McLean,  Wayne 
and  McKinley  dissented.  Governor-General  Miro  was  the  official  whose 
name  was  forged  to  so  many  documents  in  Arkansas.  Justices  McLean, 
Wayne,  McKinley  and  Grier  had  also  dissented  when  Chief  Justice 
Taney  and  a  majority  refused  to  confirm  the  notorious  Maison  Rouge 
claim.  This  was  a  claim  to  thirty  square  leagues,  or  1,044,000  acres  in 
western  Louisiana,  alleged  to  have  been  granted  by  Governor-General 
Carondelet,  in  1795.  Chief  Justice  Taney  denounced  the  alleged  grant 
as  forged  and  antedated.  See,  III  Howard,  785,  and  VII  Ibid.,  833. 


438  HISTORY   OF    THE    SUPREME    COURT 

preme  Court  (Justice  McLean  writing  the  opinion)  denied 
his  application,  on  the  ground  that  Watrous  had  submitted 
an  explanation  and  that  the  court  was  bound  to  accept  it ! 74 
Ten  years  later,  another  suit  brought  by  Mussina  against 
Cavazos  was  dismissed  by  the  Supreme  Court  of  the  United 
States  because  of  this  extraordinary  discovery:  That  when 
Mussina's  counsel  in  the  court  below  had  filed  a  bill  of  excep- 
tions the  judge  had  not  signad  and  sealed  it.  This  formality 
not  having  been  complied  with,  the  Supreme  Court  refused  to 
consider  Mussina's  petition.75 

On  the  other  hand,  in  the  suit  of  Spencer  vs.  Lapsley  over 
the  alleged  La  Vega  grant,  we  see  the  Supreme  Court  of  the 
United  States  upholding  Watrous'  decision  by  deciding,  in 
1857,  in  favor  of  Lapsley.  It  was  well  known  that  Lapsley 
was  an  integral  member  of  the  Watrous  clique,  and  that  he 
had  originally  assumed  a  residence  in  Alabama  in  order  to 
bring  the  suit  in  Watrous'  court.  Hughes  and  Hale  appeared 
as  his  attorneys  in  the  Supreme  Court.  In  a  dissenting  opin- 
ion, Justice  Daniel  declared  that  the  alleged  La  Vega  deed  in 
question  was  spurious,  denounced  the  whole  transaction,  and 
showed  that  Judge  Watrous  had  a  personal  interest  in  the 
case,  and  should  therefore  have  been  disqualified  from  sit- 
ting.76 

These  were  three  of  a  series  of  suits  occasioning  no  little 
scandal.  In  other  feigned  cases  arranged  by  the  Watrous 
clique,  the  lawyers  for  that  clique,  Hale,  Robinson,  and 
Hughes,  were  invariably  in  evidence,  often  appearing  col- 
lusively  on  opposite  sides ; 77  the  facts  were  patent  but  the  Su- 
preme Court  of  the  United  States  closed  its  eyes. 

74  XX  Howard's  Reports,  280-290. 

75  vi  Wallace's  Reports,  355-363. 
7«XX  Howard,  264-280. 

77  See,  for  example,  Case  of  League  vs.  Atchison,  VI  Wallace's  Re- 
ports, 112-116.  This  was  an  action  by  League  to  recover  a  lot  in 
Galveston  which  both  parties  claimed  under  the  Galveston  City  Com- 
pany. Robinson  and  Hale  represented  League.  Upon  the  Texas  statute 
of  limitations  that  a  suit  to  recover  real  estate  must  be  brought  within 


UNDER   CHIEF   JUSTICE   TANEY  439 

The  area  of  land  obtained  by  the  Watrous  combination  was 
large  and  of  great  value,  but  the  exact  outcome  of  all  their 
schemes  it  is  not  possible  to  trace  here  to  the  end. 

But  one  fact  is  absolutely  certain:  By  1860,  patents  for 
great  areas  of  land  had  been  issued  under  the  Powers  and 
Hewitson  contract  and  under  many  other  grants  in  which 
Watrous,  League  and  associates  were  openly  or  surrepti- 
tiously interested.78  And  already,  by  the  year  1858,  accord- 
ing to  a  report  of  a  joint  select  committee  of  the  Texas  Legis- 
lature, not  less  than  68,000,000  acres  of  Texas  lands  were 
patented  to  individuals,  largely  absentee  capitalists.  The 
committee  complained  that  21,000,000  acres  escaped  taxation. 
"  We  find  millions  of  acres  of  fertile  soil,"  it  reported  further, 
"  lying  over  Texas,  upon  which  the  owners  (the  greater  part 
of  whom  we  believe  to  be  non-residents)  are  wilfully  and 
knowingly  failing  and  refusing  to  pay  taxes." V9  Elected 
Governor  of  Texas,  General  Sam  Houston  stated  to  the  Leg- 
islature, on  February  8,  1860,  that  "  his  energies  had  been 
devoted  to  trying  to  put  a  stop  to  the  legislating  away  of  pub- 
lic lands,"  and  "  towards  overturning  corruption  and  arresting 
abuses,  but  at  every  step,  he  [Houston]  has  been  met  by  diffi- 
culties almost  insurmountable."80  If  this  corruption  was  so 
actively  and  successfully  employed  in  Texas,  is  it  not  reason- 
able to  suppose  that  it  was  equally  so  at  Washington? 

three  years,  Justice  Grier  (writing  the  opinion  of  the  Supreme  Court 
of  the  U.  S. )  reversed  the  lower  court,  and  decided  in  favor  of  League. 
See,  also,  Case  of  Cavazos  vs.  Trevino,  VI  Wallace,  773.  Trevino,  as 
Senator  Houston  had  shown,  was  one  of  the  clique's  tools.  Also, 
McKinney  vs.  Saviego,  XVIII  Howard,  235,  in  which  Hale  appeared  for 
McKinney.  and  Hughes  for  Saviego. 

78  See,  "  Abstract  of  Patented  Titles,  etc.,  from  the  Records  of  the 
General  Land  Office,  Austin,  1860":  pp.  1237,  etc. 

79  •<  Official  Journal,   House  of   Rep.,  Texas,   Seventh   Biennial   Ses- 
sion," 483-484. 

80  Journal  of  the  Senate,  State  of  Texas,  1860:  p.  545. 


CHAPTER  XI 

THE    SUPREME    COURT    UNDER    CHIEF   JUSTICE    TANEY 
(CONTINUED) 

During  the  range  of  years  covered  by  the  latter  part  of 
the  preceding  chapter,  the  course  of  the  Supreme  Court  of  the 
United  States  was  signalized  by  two  other  distinct  lines  of 
action,  as  standing  out  conspicuously  in  its  mass  of  decisions : 

I.  The  validation  of  private  claims  to  millions  of  acres  of 
the  most  valuable  lands  in  California.     Of  the  8,150,143  acres 
of  these  lands  obtained  by  individuals   under   the   form  of 
private  land  claims,  a  great  part  was  presented  by  decisions 
of  the  Supreme  Court  under  Chief  Justice  Taney. 

II.  The  issuance  of  the  edict,  in  the  Dred  Scott  case,  that 
all  laws  interfering  with  the  slavery  of  negroes  were  uncon- 
stitutional and  void,  and  that  the  negro  was  devoid  of  any 
civil  rights  which  the  white  man  was  bound  to  respect. 

With  each  of  these  events  we  shall  deal  in  consecutive,  al- 
though not  strictly  chronological,  order.  Before  doing  so, 
however,  it  is  necessary  to  describe  a  certain  change  in  the 
personnel  of  the  Supreme  Court,  and  the  important  transition 
it  signified. 

Justice  Curtis  Ascends  to  the  Bench. 

Justice  Levi  Woodbury  had  died  in  1851.  His  successor, 
appointed  by  President  Fillmore,  in  1851,  was  Benjamin  R. 
Curtis,  of  Boston.  At  the  time  of  his  appointment  Curtis 
was  only  forty-two  years  old.  Compared  to  the  ages  of 
nearly  all  of  the  other  Justices  when  commissioned  to  the  Su- 

440 


UNDER   CHIEF   JUSTICE   TANEY  441 

preme  Court  bench,  Curtis  was  remarkably  young.  To  what 
merit  or  factor  did  he  owe  his  appointment  ? 

His  elevation  to  the  Supreme  Court  was  an  event  of  the 
greatest  significance,  although  its  fundamental  importance  was 
not  then  clearly  seen. 

For  more  than  half  a  century  the  appointees  to  the  Supreme 
Court  had  been  either  owners  of  landed  estates  or  attorneys 
for  land  claims  and  schemes, —  men  almost  invariably  com- 
bining in  their  persons,  views  and  interests  the  representation 
of  the  land-owning  class.  But  within  a  few  decades,  great 
economic  changes  had  taken  place.  Two  new  and  mighty 
factors  had  gradually  asserted  themselves.  The  first  of  these 
was  the  manufacturing  interest;  the  second,  the  railroad 
power.  The  latter,  at  the  time  of  Curtis'  appointment,  was 
in  its  infancy,  but,  nevertheless,  it  had  already  become  power- 
ful enough  to  insist  that  it  have  its  representative  on  the 
Supreme  Court  bench.  The  power  of  the  railroad  corpora- 
tion, however,  was  not  then  a  distinct  one,  as  it  subsequently 
became  under  the  dominance  of  such  dictatorial  rulers  as 
Commodore  Vanderbilt,  Jay  Gould,  Russell  Sage,  Collis  P. 
Huntingdon,  Leland  Stanford  and  their  kindred  potentates.1 
At  that  era  landed,  banking,  manufacturing  and  railroad  in- 
terests were  more  or  less  interassociated ;  the  promoters  and 
directors  of  many  of  the  original  railroads  were  men  who  had 
made  their  profits  from  land  speculations,  manufacturing, 
trading,  commerce  and  banking.  The  time  was  still  somewhat 
distant  when  forceful,  arbitrary,  super-unscrupulous  men 
such  as  Vanderbilt  and  Gould  seized  great  lines  of  railroad 
systems,  originally  owned  by  a  medley  of  interests,  and  con- 
centrated their  control  in  themselves. 

Curtis'  appointment,  therefore,  was  an  exact  reflex  of  con- 
ditions at  the  time  of  his  selection.  He  had  studied  law  at 
Harvard  under  Justice  Story,  who  was  a  lecturer  at  that  Uni- 

1  The  growth  of  the  railroad  interest  is  fully  described  in  a  later 
chapter. 


442  HISTORY   OF   THE    SUPREME    COURT 

versity.  From  1836  to  1851  Curtis,  as  an  attorney,  had  rep- 
resented a  great  number  of  commercial  firms,  insurance  com- 
panies, shippers,  banks,  manufacturing  corporations  and  canal 
and  railroad  companies.  Specifically,  he  had  been  attorney 
for  the  Oriental  Bank  and  the  Tremont  Bank,  of  Boston,  and 
for  other  banks ; 2  he  had  represented  the  Western  Railroad 
corporation,3  the  Boston  and  Maine  Railroad,4  the  Boston  and 
Providence  Railroad  corporation,5  the  Boston  Manufacturing 
Company  and  a  variety  of  other  corporations.  In  the  biog- 
raphy of  Curtis,  edited  by  his  son,  we  are  told  that  his  income 
had  been  as  large  as  that  of  any  other  lawyer  in  New  England, 
and  that  in  1851 — the  year  of  his  appointment  to  the  Su- 
preme Court  —  he  had  bought  a  valuable  estate  of  three  hun- 
dred acres  at  Pittsfield,  Massachusetts,  where  he  built  a 
splendid  mansion. 

In  the  same  work  we  are  also  informed  that  Curtis'  appoint- 
ment was  recommended  to  President  Fillmore  by  Daniel 
Webster,  then  Secretary  of  State.0  Although  having  a  large 
private  income  from  his  corporation  practice,  Webster's  habits 
were  such  that  he  was  generally  in  an  impecunious  state. 
Periodically,  the  Lawrences  and  other  cotton  manufacturers 
would  come  to  his  relief ;  he  seems  to  have  been  regularly  sub- 
sidized by  them.  "  On  several  occasions,"  says  Ben  Perley 
Poore,  referring  to  Abbot  Lawrence,  "  a  large  cotton  lord," 
and  a  principal  owner  of  the  great  Fall  River  Mills,  "  he  had 
been  one  of  '  the  solid  men  of  Boston,'  who  had  contributed 
considerable  sums  for  the  pecuniary  relief  of  Mr.  Webster."  7 

2  See,  Metcalf's  Reports   (Supreme  Court  of  Mass.),  Vols.  Ill  and 
IV:  pp.  581,  etc.,  Cushing's  Reports,  Ibid.,  142,  etc.,  etc. 

3  Cushing's  Reports    (Supreme  Court  of  Mass.),  Vol.  Ill:  270.     In 
this  case  he  had  successfully  prevented  an  injured  railroad  brakeman 
from  recovering  damages  from  the  company. 

4  III  Cushing's  Reports,  25  and  58,  and  V  Ibid.,  375. 

5  VI  Gushing,  424. 

6  "  The  Life  and  Writings  of  B.  R.  Curtis,  Edited  By  His  Son,"  Vol. 

I:  154- 

7  "  Reminiscences,"  Vol.  1 :  287.    Webster  was  one  of  the  foremost 
politicians  in  advocating  a  high  protective  tariff. 


UNDER   CHIEF   JUSTICE   TANEY  443 

These  donations  were  gratefully  received  by  Webster. 

Working-Class  Conditions. 

The  period  was  one  of  astonishing  activity  on  the  part  of 
the  working  class,  and  issues  were  constantly  arising  which 
employers  looked  to  the  courts  to  settle.  The  attempt  to  have 
the  strike  declared  by  the  courts  illegal  and  a  conspiracy  had 
failed,  but  the  demand  for  a  shorter  workday  was  bitterly 
resisted.  The  owners  of  the  cotton  mills  were  amassing  im- 
mense fortunes ;  as  fast  as  more  improved  labor-saving 
machinery  was  installed,  production  was  increased  and  wages 
were  reduced.  A  large  proportion  of  the  employes  in  the 
Lowell  mills  were  women  and  children. 

In  the  Voice  of  Industry,  a  labor  paper  published  at  Fitch- 
burg,  Massachusetts,  in  1845,  a  typical  instance  of  conditions 
is  given  in  the  statement  of  a  frail  girl  of  eight  or  nine 
years  old :  "  I  go  to  work  before  daylight  in  the  morning  and 
never  leave  it  until  it  is  dark,  and  don't  make  enough  to  sup- 
port mother  and  baby."  Referring  to  the  increase  of  two 
hundred  per  cent,  in  the  cotton-mill  dividends  in  a  single  year, 
and  the  corresponding  decrease  of  twelve  and  a  half  per  cent, 
in  the  wages  of  women  and  children,  the  Voice  of  Industry 
said : 

"  In  this  state  of  things  the  bounty  offered  to  manufacturers 
by  the  tariff  induced  many  of  the  wealthy  men  of  New  Eng- 
land to  invest  their  capital  in  manufactures,  which,  when  the 
tariff  has  been  high,  proved  exceedingly  profitable,  concen- 
trating great  wealth  in  the  hands  of  a  few,  whilst  the  laboring 
part  of  the  community  has  increased  rapidly,  until  the  demand 
for  employment  exceeds  the  want  of  the  employers,  which 
has  enabled  them  to  reduce  the  wages  of  the  operatives  whilst 
their  own  profits  were  very  largely  increased,  and  this  reduc- 
tion of  wages  must  continue  to  go  on  with  the  increase  of  the 
class  of  society  who  depend  upon  employment  for  subsistence, 
until  they  arrive  at  a  point  which  will  barely  afford  such  neces- 


444  HISTORY   OF  THE   SUPREME   COURT 

sities  as  will  enable  the  human  system  to  undergo  its  daily 
toil." 

One  organization  after  another  was  formed  either  by  the 
workers  themselves,  or  by  humanitarian  sympathizers.  "  The 
dollar,"  stated  the  New  England  Protective  Union,  in  1845, 
"  was  to  us  of  minor  importance ;  humanitary  and  not  mer- 
cenary were  our  motives."  And  it  went  on :  "  Man's  mus- 
cles are  now  made  to  compete  with  iron  machines  that  need 
no  rest,  that  have  no  affections,  that  eat  no  bread.  Why  if 
he  that  produces  everything  not  only  destitute  of  the  luxuries 
but  of  the  common  comforts  of  life,  to  say  nothing  of  a  shel- 
ter he  may  call  his  own  ?  "  As  to  the  conditions  of  the  work- 
ers, the  Union  said  that,  "  Lamentable  as  is  the  condition  of 
the  laboring  men,  that  of  the  women  is  worse  and  increasingly 
so."  The  early  development  of  the  cooperative  idea  is  seen 
in  its  declaration,  "  We  must  proceed  from  combined  stores 
to  combined  shops,  from  combined  shops  to  combined  houses, 
to  joint  ownership  in  God's  earth,  the  foundation  that  our 
edifice  must  stand  upon."  These  lofty  aspirations  were  ac- 
companied by  a  strong  denunciation  of  the  fugitive  slave  law 
"  as  an  infamous  act,  fitted  to  be  trampled  under  the  foot  of 
every  lover  of  justice  and  liberty." 

The  New  England  Workingmen's  Association  was  formed 
at  the  same  time  to  combat  prevalent  conditions  of  society 
under  the  arrangements  of  which  "  labor  is  and  must  be  the 
slave  of  wealth,"  and  "  the  producers  of  all  wealth  are  de- 
prived, not  merely  of  its  enjoyment,  but  also  of  the  social  and 
civil  rights  which  belong  to  humanity  and  the  race."  Every- 
where the  workers  were  rising,  and  as  fast  as  they  formed 
organizations,  the  employing  capitalists  sought  to  intimidate 
them  and  disrupt  their  organizations  by  discharging  the  lead- 
ers from  work,  and  reducing  them  to  beggary. 

A  call  for  a  Workingmen's  Meeting  in  New  York,  on  July 
16,  1845,  stated  that  there  were  65,000  paupers  in  New  York 


UNDER  CHIEF  JUSTICE  TANEY  445 

City  alone,  and  that  one-sixth  of  the  entire  population  was  in 
a  condition  of  pauperism;  that  the  white  labor  of  the  North 
was  in  a  worse  state  than  the  slave  of  the  South.  A  demand 
of  Pittsburg  and  Alleghany  City  cotton-mill  workers  on  June 
1 6,  1845,  f°r  a  ten-hour,  instead  of  a  twelve-hour,  workday, 
was  met  with  the  reply  that  the  adoption  of  such  a  system  was 
impracticable  so  long  as  the  Eastern  factories  ran  seventy-two 
hours  a  week. 

The  first  Industrial  Congress  of  the  United  States  convened 
at  New  York,  on  October  12,  1845.  It  declared  that  "  it  is  a 
well-known  fact  that  rich  men,  capitalists  and  non-producers 
associate  to  devise  means  for  securing  to  themselves  the  fruits 
of  other  men's  labors  " ;  therefore,  farmers,  mechanics  and 
wqrkingmen  ought  to  organize.  The  preamble  also  declared 
that  further  traffic  in  land  by  the  Government  should  cease, 
and  that  the  public  lands  should  be  made  free  to  actual  set- 
tlers, so  that  every  man,  woman  and  child  in  the  nation  should 
have  a  home.  It  denounced  the  existing  system  of  factory 
labor,  as  withering  life's  energies,  even  in  childhood,  causing 
physical  deformity  because  of  excessive  toil,  and  depriving 
workers  of  the  opportunity  to  acquire  cultivation,  and  at  the 
same  time,  producing  deterioration  of  both  mind  and  body. 

In  1845  and  1846  great  meetings  of  the  workers  in  Lowell, 
Chicopee,  Manchester,  New  York  City  and  Philadelphia 
demanded  a  ten-hour  day.  In  these  agitations  girls  and 
women  were  as  aggressive  as  the  men.  To  supply  the  places 
of  these  agitators  the  Chicopee  mill  owners  resorted  to  this 
device:  They  sent  a  long  black  wagon  to  make  regular  trips 
in  Massachusetts,  Vermont  and  New  Hampshire,  paying  the 
man  in  charge  a  dollar  a  head  (or  more  according  to  distance 
traveled)  for  every  girl  he  secured.  Farm  girls,  it  was 
charged,  were  thus  enticed  on  the  representations  that  the  work 
"  was  very  neat,  wages  high,  and  that  they  could  dress  in  silks 
and  spend  half  the  time  in  reading." 


446  HISTORY  OF  THE   SUPREME   COURT 

Land  Grabbing  and  Negro  Slavery  Denounced. 

The  Laborers'  Union  memoralized  Congress  to  put  an  end 
to  the  traffic  in  the  public  lands.  "  This  system,"  it  protested, 
"  is  imported  into  this  country  from  Europe,  and  is  fast  de- 
basing us  to  the  condition  of  dependent  tenants,  of  which  con- 
dition a  rapid  increase  of  inequality,  misery,  pauperism,  vice 
and  crime  are  necessary  consequences.  .  .  ."  In  1846, 
the  New  England  Workingmen's  Convention,  at  Lynn,  Mass., 
declared  that  "  there  are  at  the  present  time  three  millions 
of  our  brethren  and  sisters  groaning  in  chains  on  the  Southern 
plantations  .  .  .  ,"  and  called  upon  "  our  brethren  to 
speak  out  in  thunder  tones,  both  as  associations  and  individ- 
uals, and  to  let  it  no  longer  be  said  that  Northern  laborers, 
while  they  are  contending  for  their  rights,  are  a  standing 
army  to  keep  three  millions  of  their  brethren  and  sisters  in 
bondage  at  the  point  of  the  bayonet." 

These  are  a  few  of  a  large  assemblage  of  facts  showing  the 
unrest  and  agitation  among  the  workers  at  the  time,  and  their 
spirit,  views  and  purposes.  Year  after  year  the  movement 
grew ;  strike  succeeded  strike ;  the  ten-hour  day  was  finally 
won  after  heroic  struggles  in  which  starvation  was  a  common- 
place. But  for  the  great  contest  for  the  emancipation  of  the 
negro  slaves,  which  soon  overshadowed,  and  partially  ab- 
sorbed, the  labor  agitation  in  the  North,  the  movement  would 
have  gone  much  further,  despite  every  repressive  measure 
that  the  capitalists  used.  But  it  was  already  formidable 
enough,  and  employers  generally  foresaw  that  it  contained 
potentialities  certain  to  produce  great  conflict  in  future  times. 
Even  then  they  perceived  that  it  was  necessary  for  them  to 
mold  the  courts  in  such  a  shape  that  the  activity  and  actions 
of  the  workers  would  be  more  and  more  restricted  by  judi- 
cial constructions,  orders  and  usurpations. 

Justice  Curtis'  habit  of  ffank  letter-writing  gives  us  some 
insight  into  the  methods  of  the  Supreme  Court  of  the  United 


UNDER   CHIEF   JUSTICE   TANEY  447 

States.  Writing  from  Washington,  February  29,  1852,  Jus- 
tice Curtis  informed  Tickrior:  "Judge  Catron  will  give  the 
opinion  of  the  court  in  Mrs.  Games'  case  to-morrow.  In  this 
opinion  I  unite  with  Nelson  and  Grier.  Wayne  and  Daniel 
dissent,  on  account  of  an  interest,  in  some  way,  which  some 
of  their  relatives  have.  .  .  ." 8 

One  of  the  traditions  of  the  Supreme  Court,  constantly  re- 
peated for  the  edification  of  the  public,  was  that  the  strictest 
precautions  were  taken  to  guard  against  advance  information 
of  decisions  being  given  out.  Here,  however,  was  one  of  the 
Justices  conveying  information  of  precisely  that  character. 
Quite  true,  Curtis  was  writing  to  one  whom  he  regarded  as  a 
confidant,  but,  as  we  shall  see,  the  same  leakage  happened  in 
the  Dred  Scott  case.  This  being  so  in  at  least  two  known 
instances,  it  is  within  the  bounds  of  possibility  that  it  took 
place  in  other  decisions,  possibly  affecting  stock-market  oper- 
ations, in  which  advance  information,  of  only  a  day's  notice, 
could  be  transmuted  into  fortunes. 

In  the  same  letter,  Curtis  described  Justices  McLean  and 
Wayne  as  the  "  most  high-toned  Federalists  on  the  bench." 
Elsewhere  he  noted  that  McLean  hoped  to  be  a  candidate  for 
ihe  President  of  the  United  States.9  He  thus  confirmed  what 
;vas  often  publicly  charged  —  that  more  than  one  member  of 
the  Supreme  Court  was  incessantly  playing  politics,  and  seek- 
ing to  ingratiate  himself  into  the  favor  of  every  powerful 
interest  which  could  be  used  in  advancing  political  ambitions. 
This  was  especially  and  notoriously  true  of  McLean,  who, 
having  the  good-will  of  the  capitalists  of  his  own  region,  sought 
also  that  of  th*e  slave-owning  power. 

f"The  Life  and  Letters  of  B.  R.  Curtis,"  etc.,  Vol.  I:  168.  This 
suit  involved  title  to  property  of  immense  value  in  New  Orleans. 
The  footnote  in  the  Case  of  Charles  Patterson  vs.  Gaines  and  Wife, 
VI  Howard's  Reports,  550,  reads :  "  Mr.  Justice  Taney  did  not  sit  in 
this  cause,  a  near  family  relative  being  interested  in  the  event.  Mr. 
Justice  McLean  did  not  sit  in  this  cause."  It  is  not  explained  who  the 


relative  was.     The  decision  went  against  Mrs.  Gaines. 
"  Life  and  Letters  of  B.  R.  Curtis,"  etc.,  Vol.  I :  i< 


168  and  180. 


448  HISTORY  OF  THE   SUPREME   COURT 

Curtis  as  a  Corporation  Attorney. 

In  view  of  the  fact  that  decisions  validating  claims  of 
enormous  magnitude  in  Texas,  California  and  other  sections 
in  favor  of  individuals  and  corporations  were  handed  down 
by  the  Supreme  Court  of  the  United  States  largely  during 
the  time  Curtis  was  on  the  bench,  from  1851  to  1857,  his  sub- 
sequent career  may  be  appropriately  commented  upon  here. 
He  was  one  of  the  few  Justices,  in  good  or  bad  health,  who 
ever  resigned  from  the  Supreme  Court;  his  son  tells  us  that 
from  the  date  of  his  resignation  in  1857,  to  his  death  in  1874, 
he  gathered  in  about  $650,000  from  professional  services,10 — 
a  sum  equal  in  value  to  many  times  that  amount  in  present 
days.  After  he  had  resumed  the  practice  of  law,  he  repre- 
sented a  large  galaxy  of  corporations,  some  of  which  were  the 
identical  corporations  issues  affecting  which  had  been  decided 
by  the  Supreme  Court.  He  represented  the  Boston  and 
Maine  Railroad,  the  Fitchburg  Railroad,  the  Grand  Junction 
Railroad  and  Depot  Company,  the  Eastern  Railroad  Com- 
pany, the  Adams  Express  Company,  the  Galveston  Railroad 
Company,  James  Lawrence  of  the  Middlesex  Mills,  the  Boston 
Water  Power  Company,  the  Boston  Gas  Light  Company,  the 
Hudson  Iron  Company  and  many  other  corporations.11  Fre- 
quently he  also  appeared  for  stockholders  and  other  capitalists 
in  suits  against  corporations,  and  on  several  occasions  was  re- 
tained by  the  United  States  to  contest  land  claims.  Wherever 
a  large  fee  was  to  be  had,  there  Curtis  was  to  be  found,  no 
matter  what  the  nature  of  the  case  was,  or  whoever  his  client. 
Beyond  doubt,  he  was  one  of  the  most  frequently  employed 
and  best-paid  corporation  attorneys  of  his  day;  few  lawyers 
represented  so  wide  a  variety  of  corporate  interests. 

10  "  Life  and  Letters  of  B.  R.  Curtis,"  etc.,  Vol.  1 :  268. 

11  See,  XIV  Gray's  Reports  (Supreme  Court  of  Mass.),  553 ;  103  Mass. 
Rep.,  254  and  259;  107  Mass.  Rep.,  15;  XT  Wallace's  Reports,  459;  83 
Mass.  Reports  (I  Allen),  339;  91  Mass.  Rep.,  466;  96  Mass.  Rep.,  444; 
102  Mass.  Rep.,  45,  etc.,  etc. 


UNDER   CHIEF  JUSTICE  TANEY  449 

Organized  Forgery  in  California. 

The  Mexican  War  resulted  in  the  cession  to  the  United 
States,  in  1848,  of  the  present  States  of  California,  Nevada, 
Utah,  part  of  Colorado,  and  the  whole  of  the  Territories  of 
Arizona  and  New  Mexico,  except  the  Messilla  Valley.  This 
domain  comprised  334,000,000  acres. 

In  anticipation  of  this  cession,  the  same  process  of  forging 
and  antedating  land  claims  which  had  proved  so  generally  and 
signally  successful  in  the  Louisiana  Purchase,  and  in  Florida 
and  Texas,  was  industriously  carried  on  in  California  and  in 
other  parts  of  the  Mexican  cession. 

Reporting  to  Congress  in  1860,  United  States  Attorney- 
General  Black  described  how  he  had  ordered  the  Mexican 
archives  to  be  collected,  and  he  set  forth  the  details  of  that 
investigation.  "  The  archives  thus  collected,"  he  wrote,  "  fur- 
nished irresistible  proof  that  there  had  been  an  organized 
system  of  fabricating  land  titles  carried  on  for  a  long  time 
in  California  by  Mexican  officials;  that  forgery  and  perjury 
had  been  reduced  to  a  regular  occupation ;  that  the  making  of 
false  grants,  with  the  subornation  of  false  witnesses  to  prove 
them,  had  become  a  trade  and  a  business.  .  .  .  There  was 
also  compiled  from  the  records  here  a  faithful  chart  of  all  of 
the  professional  witnesses  or  persons  supposed  to  have  hired 
themselves  out  to  do  the  business  of  false  swearing  of  claims. 
To-day  full  biographies  of  nearly  all  of  the  men  who  have 
been  engaged  in  these  schemes  of  imposture,  from  governors 
down  to  the  lowest  suborned  witnesses,  can  now  be  furnished 
whenever  necessary." 

Black  went  on  to  say :  "  It  must  be  remembered  that  the 
grants  in  most  of  these  fraudulent  cases  were  very  skilfully 
got  up,  and  were  supported  by  the  positive  oaths,  not  merely 
of  obscure  men  whose  characters  were  presumed  to  be  fair, 
but  also  by  the  testimony  of  distinguished  men,  who  had  oc- 
cupied high  social  and  political  places  under  the  former  gov- 


450  HISTORY   OF   THE    SUPREME    COURT 

ernors The  value  of  the  lands  claimed  under  grants 

ascertained  to  be  forged  is  $150,000,000."  12 

But  already,  under  a  certain  noted  decision  of  the  Supreme 
Court  of  the  United  States,  immense  areas  of  the  richest  agri- 
cultural, grazing,  timber,  water-front,  mining  and  city  lands 
in  California  had  been  presented  to  a  few  capitalists. 

Following  the  discovery  of  gold  in  California,  there  was 
hardly  a  politician  at  Washington  who  was  not  engaged,  di- 
rectly or  indirectly,  in  pushing  land  claims ;  with  vast  riches 
in  sight,  a  feverish  scramble  set  in  to  have  a  hand  in  the  spoils. 
This  activity  became  so  pronounced  and  caused  so  much  scan- 
dal, that  to  mollify  indignant  constituencies,  Congress  in  1853 
passed  a  pretentious  act,  which,  however  remained  a  dead 
letter.  The  act  forbade,  under  penalties,  any  Government 
official  from  acting  as  agent  or  attorney  in  prosecuting  claims, 
or  from  receiving  any  gratuity  or  interest  in  them.  It  forbade 
members  of  Congress,  under  a  penalty  of  fine  and  imprison- 
ment, from  doing  the  same,  and  it  subjected  any  person  who 
attempted  to  bribe  a  member  of  Congress  to  fine  and  impris- 
onment, and  the  acceptor  of  the  bribe  to  forfeiture  of  his  of- 
fice. 

Importance  of  the  Fremont  Case. 

The  particular  case  decided  by  the  Supreme  Court  of  the 
United  States  serving  as  the  great  precedent  in  allowing  land 
grabbers  to  appropriate  millions  of  acres  in  California  and 
elsewhere  was  that  of  Fremont  vs.  the  United  States.  Fre- 
mont turned  up  with  a  claim  for  a  "  floating  grant "  for  ten 
square  leagues  (44,386.33)  acres,  which  he  averred  had  been 
granted  by  the  Mexican  Acting-Governor  Micheltorena,  in 
1844,  to  Juan  B.  Alvardo,  from  whom  Fremont  claimed  to 
have  bought  it.  By  "  floating  grant "  was  meant  one  with 
boundaries  not  described,  but  with  power  to  locate  anywhere. 

12  Ex.  Doc.  No.  84,  Thirty-Sixth  Congress.  Also,  House  Reports, 
Third  Session,  Fortieth  Congress,  Report  No.  261 :  544. 


UNDER   CHIEF   JUSTICE   TANEY  451 

If  this  grant  were  confirmed,  Fremont  and  all  others  claiming 
to  hold  similar  grants  could  select  the  finest  lands  wherever 
they  chose. 

The  Government  stubbornly  contested  Fremont's  claim,  con- 
tending that  it  was  a  mere  paper  title  or  grant,  and  that  the  con- 
ditions of  settlement  called  for  had  never  been  carried  out. 
Fremont  advanced  the  old,  mildewed  excuse  that  Indian  hos- 
tilities had  prevented  settlement.  Accepting  this  excuse,  on 
precedents  heretofore  cited,  the  Supreme  Court  of  the  United 
States,  in  December,  1854,  confirmed  Fremont's  grant  as 
valid.13 

Chief  Justice  Taney,  in  delivering  the  majority  opinion, 
cited  particularly  the  Arredondo  decision,  and  held  that  when 
made,  the  grant  imparted  a  vested  right,  even  though  it  had 
not  been  confirmed  by  the  Mexican  Departmental  Assembly, 
as  the  law  required. 

Dissenting,  Justices  Catron  and  Campbell  strongly  de- 
nounced the  claim  as  one  that  had  no  standing  and  that  abso- 
lutely lacked  both  merit  and  equity.  They  pointed  out  that 
not  a  single  condition  of  the  grant  had  been  performed;  that 
it  was  admitted  that  the  Mexican  Government  never  would 
have  confirmed  the  claim ;  and  declared  that  "  no  bolder  case 
than  the  one  before  us  can  exist  in  California,  where  the  grant 
is  not  infected  with  fraud  or  forgery."  14 

General  John  C.  Fremont,  the  beneficiary  of  this  decision, 
had  taken  part  in  the  conquest  of  California,  and  was  United 
States  Senator  from  California  in  1850-1851.  He  was  the 
Republican  candidate  for  the  Presidency  in  1856.  When  he 
commanded  the  Western  department  of  the  Federal  army,  at 
St.  Louis,  during  the  Civil  War,  in  1861,  the  greatest  frauds 
were  committed  at  that  post  in  the  purchase  of  munitions 
and  supplies.  One  particularly  glaring  example  of  these 

13  Howard's  Reports,  Vol.  XVII :  542-576. 

14 Ibid.,  571.  A  footnote  in  Howard  reads:  "Mr.  Justice  Daniel 
did  not  sit  in  this  cause"  (p.  542). 


452  HISTORY  OF  THE   SUPREME   COURT 

great  frauds  was  that  famous  sale  of  condemned  rifles  (de- 
scribed in  Vol.  Ill  of  the  "  History  of  the  Great  American 
Fortunes,"  citing  from  the  records).  Five  thousand  of  Hall's 
carbines,  condemned  by  the  army  officers  as  being  so  bad  that 
they  would  shoot  off  the  thumbs  of  the  soldiers  who  used 
them,  were  sold  to  Arthur  M.  Eastman  for  $3.50  each,  and 
then  resold  to  Fremont,  for  use  in  the  army,  at  $22.  The  real 
backer  of  this  transaction  was  that  great  financial  magnate  of 
later  days  —  J.  Pierpont  Morgan.  When  the  Government 
found  out  the  spurious  nature  of  the  rifles  and  refused  to  pay 
the  full  sum,  Morgan  brought  suit.  Under  a  later  decision 
of  the  Court  of  Claims  the  Government  was  forced  to  pay  in 
full,  the  court  holding  to  the  technicality  that  a  contract  was 
a  contract.  These  facts  tend  to  illumine  the  character  of  Fre- 
mont's dealings,  and  are  well  worth  referring  to  in  this  descrip- 
tion of  the  Fremont  claim  decision  of  1854. 

Land  Claims  Validated  Under  the  Fremont  Precedent. 

Under  this  decision,  the  United  States  District  Court  in 
California  was  compelled  to  confirm  a  great  number  of  similar 
claims.  In  thus  confirming,  in  June  1856,  Francisco  Rico's 
claim  to  eleven  square  leagues  in  Stanislaus  County,  Judge 
Hoffman  clearly  expressed  his  suspicions  of  the  genuineness 
of  the  grant,  but  found  himself  forced  to  confirm  it  under  the 
precedent  in  the  Fremont  case.15  Likewise  in  accordance  with 
the  precedent  in  the  Fremont  case,  Judge  Hoffman  could  not 
avoid  confirming  other  grants,  many  of  which  had  been  re- 
jected by  the  Board  of  Land  Commissioners.  Among  the 
claims  confirmed  under  the  Fremont  ruling  were : 

Charles  D.  Semple's  claim  to  eleven  square  leagues  of  land 
on  the  Sacramento  River.16 

15  U.  S.  vs.  Rico,  Hoffman's  Reports :  Land  Cases,  1862 :  161-162. 
« Ibid.,  37. 


UNDER   CHIEF   JUSTICE   TANEY  453 

Thomas  O.  Larkin's  claim  to  eleven  leagues  of  land  on  the 
west  bank  of  the  Sacramento  River.17 

George  C.  Yount's  claim  to  one  league  of  land  in  Napa 
County.18 

Josefa  Soto's  claim  to  ten  square  leagues  of  land  in  Colusa 
County.10 

Hiram  Grimes'  claim  to  eight  leagues  of  land  in  San  Joaquin 
County.20 

Juan  Perez  Pachecho's  claim  to  eleven  leagues  of  land  in 
Mariposa  County.21 

Andreas  Pico's  claim  (one  of  a  number  of  his  claims)  to 
eleven  square  leagues  of  land  in  Calaveras  County.22 

Charles  M.  Weber's  claim  to  eleven  leagues  of  land  in  San 
Joaquin  County.23 

The  claim  of  the  heirs  of  Anastasio  Chabolla  to  eight 
leagues  of  land  in  San  Joaquin  County.24 

Antonio  Maria  Pico's  claim  to  eight  leagues  of  land  in  the 
same  county.25 

James  Noe's  claim  to  five  leagues  of  land  in  Yolo  County.26 

Sebastian  Nunez's  claim  to  six  leagues  of  land  in  Tuolumne 
County.27 

And  other  claims  of  the  same  character.     The  claims  above 

"  Ibid.,  41. 
18  Ibid.,  43. 
"  Ibid.,  68. 

20  Ibid.,  107. 

21  Hoffman's  Reports:  Land  Cases,  113. 

22  Ibid.,  117  and   188.       The  Calaveras  County  claim,  however,  was 
subsequently  voided  by  the  Supreme  Court  of  the  United  States.     At- 
torney-General Stanton  had  appealed  the  case,  and  clearly  proved  that 
no  such  grant  to  Andreas   Pico  had  ever  been  made  by  his  brother. 
Acting   Governor    Pio    Pico.     "  It   is  a   forgery,"    Stanton   declared   in 
court.     "  The  proof  of  this  is  powerful  and  overwhelming    .     .     ."     In 
the  face  of  this  proof,  the  Supreme  Court  could  not  avoid  invalidating 
the  claim. —  XXII  Howard's  Reports,  406-416. 

23  Hoffman's  Reports,  etc.,  126. 
z*lbid.,  130. 

25  Ibid.,  142. 
2«Ibid.,  162. 
"Ibid.,  197. 


454  HISTORY   OF   THE    SUPREME   COURT 

mentioned  comprised  more  than  550,000  acres  of  the  richest 
lands  in  California. 

In  confirming  these  grants,  Judge  Hoffman  made  severe 
comments  and  more  than  implied  that  if  he  were  not  con- 
fronted with  the  ruling  of  the  Supreme  Court  of  the  United 
States,  in  the  Fremont  case,  he  would  have  rejected  most  of 
them.  In  his  decision  on  the  Pico  eleven-league  claim  he  ex- 
pressed his  suspicions  of  the  authenticity  of  the  grant,  and  in 
the  Nunez  case  he  spoke  of  the  strange  testimony  of  the  wit- 
nesses as  suspiciously  like  perjury.  The  Mexican  laws,  Judge 
Hoffman  said,  imposed  strict  conditions  upon  all  grants.  Al- 
though in  the  cases  of  many  of  the  grants  no  settlement  had 
been  made,  and  although  the  excuse  advanced  of  Indian  hos- 
tilities preventing  settlement  was  not  satisfactorily  shown,  yet 
he  was  compelled  to  confirm  the  claims.  He  could  not,  he 
said,  contravene  the  ruling  of  the  Supreme  Court  in  the  Fre- 
mont case. 

Systematic  Forgery  and  Perjury. 

Many  of  the  foregoing  grants,  real  or  alleged,  bore  the  sig- 
nature of  Pio  Pico,  Mexican  Acting  Governor  of  California, 
in  1846.  No  doubt  Pico's  signature  was  genuine  in  some 
cases,  for  when  it  was  evident  that  Mexican  authority  was  to 
be  supplanted  by  that  of  the  United  States,  Pico  industriously 
began  to  issue  fraudulent  grants  in  return  (as  the  court  rec- 
ords indicate)  for  bribes.  A  large  number  of  the  grants  bear- 
ing his  signature  were  made,  or  were  said  to  have  been  made, 
in  a  single  month  —  May,  1846  —  two  months  before  the 
Mexican  authority  in  California  was  overthrown.  In  the  case 
of  other  grants,  his  signature  and  the  signatures  of  other  Mex- 
ican governors  were  forged,  and  the  alleged  grants  antedated. 
Acting-Governor  Pio  Pico's  Secretary  was  Moreno ;  of  Mo- 
reno and  his  associates,  the  House  Committee  on  Claims  re- 
ported, on  February  24,  1869: 

".     .     .     Gomez,  Abrego  and  Moreno  are  suitable  associ- 


UNDER    CHIEF   JUSTICE   TANEY  455 

ates.  They  are  equally  notorious  for  the  forgeries  and  per- 
juries in  which  they  have  been  concerned.  Gomez  and  Abrego 
were  the  chief  instruments  in  the  false  swearing  in  the  great 
Limantour  swindle  that  attracted  so  much  public  attention 
some  years  ago.  Ex-Secretary  Stanton  visited  California  in 
1858  in  behalf  of  the  United  States  in  connection  with  land 
cases,  and  then  found  that  Abrego  had  been  a  witness  to  sup- 
port thirty-two,  and  Gomez,  twelve,  claims,  most  of  which  were 
ascertained  to  be  frauds  or  forgeries."  28 

In  rejecting  many  claims  which,  because  they  lacked  certain 
features  bringing  them  within  the  scope  of  the  Fremont  rul- 
ing, could  be  thrown  out,  Judge  Hoffman  referred  to  the  per- 
juries committed  by  Gomez.  Hoffman  rejected  Joseph  C. 
Palmer's  claim  to  two  leagues  of  land  in  San  -Francisco 
County,  saying  that  "  the  suspicion  that  it  has  been  fabricated 
since  the  change  of  Government  is  irresistibly  suggested. 
That  such  has  been  the  case,  in  some  instances,  is  notorious. 
That  such  a  fraud  was  easy  while  the  former  governors  of 
this  country  [California]  were  alive  and  accessible,  is  obvi- 
ous." Judge  Hoffman  further  wrote  of  "  the  notorious  fa- 
cility with  which  testimony  like  that  in  support  of  this  claim 
can  be  procured."  20 

Although  many  of  these  and  other  claims  were  nominally 
in  the  names  of  Mexicans,  they  were  really  owned  or  promoted 
by  American  politicians  and  capitalists.  While  Judge  Hoff- 
man, at  San  Francisco,  was  denouncing  and  exposing  the  or- 
ganized system  of  fraud  and  forgery,  the  Supreme  Court  of 
the  United  States  was  busily  engaged  in  both  rejecting  and 
confirming  land  claims  of  vast  magnitude.  The  claims  re- 
jected by  it  had  not  only  been  awkwardly  prepared,  but  their 
obvious  circumstances  were  left  in  so  crude  and  clumsy  a 

28  House  Reports,  Third  Session,  Fortieth  Congress,  1869,  Rep.  No. 
261 :  535. 

29  Hoffman's  Reports,  etc.,  249-272.     (Case  of  Palmer  et  al.  vs.  the 
U.S.) 


456  HISTORY   OF   THE   SUPREME   COURT 

shape  that  no  court  in  the  wide  world  could  have  exposed 
itself  to  ridicule  by  professing  to  accept  the  pleas  made. 

Juan  M.  Luco  and  Jose  L.  Luco  came  forward  with  what 
purported  to  be  a  grant  from  Acting-Governor  Pio  Pico  for 
from  thirty  to  fifty  square  leagues,  or  some  270,000  acres,  in 
California.  Judge  Hoffman  sarcastically  commented  upon 
the  fact  that  during  the  years  when  they  were  supposed  to 
hold  this  extensive  and  valuable  claim,  one  of  them  was  living 
upon  the  alms  of  a  rich  friend,  or  mending  clothes  for  a 
livelihood.  Why,  too,  he  inquired,  had  they  allowed  so  many 
years  to  elapse  before  they  bethought  themselves  of  the  ne- 
cessity of  getting  the  grant  confirmed?  Judge  Hoffman 
threw  the  grant  out  of  court  as  forged  and  antedated.30  The 
Supreme  Court  of  the  United  States  likewise  found  the  pur- 
ported circumstances  too  much  of  a  strain  upon  its  credulity. 
It  dismissed  the  claim  as  "  beyond  doubt  a  mere  fabrication," 
and  declared  the  documents  forgeries.31 

Eleven  square  leagues  on  the  upper  waters  of  the  Sacra- 
mento River  was  Henry  Cambuston's  claim,  purported  to  be 
derived  from  a  grant  made  by  Pio  Pico,  in  May,  1846.  At- 
torney-General Black  denounced  it  as  a  forgery.  "  In  the 
examination  of  the  evidence  in  this  case,"  wrote  Justice  Nel- 
son, in  delivering  the  opinion  of  the  Supreme  Court  of  the 
United  States,  in  December,  1857,  "  it  is  difficult  to  resist  a 
suspicion  as  to  the  bona-fides  of  the  grant  in  question."  He 
added  significantly :  "  The  court  below  appears  to  have  been 
very  much  impressed  with  the  unsatisfactory  character  of  the 
evidence,  and  with  doubts  as  to  the  genuineness  of  the  title, 
and  seems  to  have  yielded  rather  to  the  apparent  acquiescence 
of  the  representatives  of  the  Government,  in  the  decisions  of 
the  Commissioners,  than  to  any  settled  convictions  of  its  own 
judgment."  The  Supreme  Court  pronounced  the  claim  in- 
valid.32 The  claim  of  James  R.  Bolton  to  fully  10,000  acres 

30  Hoffman's  Reports,  etc.,  371. 

si  XXIII  Howard's  Rep.,  515-543- 

82  U.  S.  vs.  Cambuston,  XX  Howard,  59-65. 


UNDER   CHIEF   JUSTICE    TANEY  457 

of  land  in  the  vicinity  of  San  Francisco  —  a  claim  valued  (at 
a  low  estimate)  at  more  than  $2,000,000  in  the  year  1851  — 
was  also  declared  worthless  by  the  Supreme  Court  of  the 
United  States.  Bolton  averred  that  Pio  Pico  had  given  the 
grant  to  Santillan,  a  priest,  from  whom  he  had  bought  it.33 

Rafael  Garcia  claimed  nine  leagues  of  land  on  an  alleged 
grant  by  Michel torena.  Attorney-General  Black  pointed  out 
that  there  was  no  trace  in  the  official  archives  of  the  papers 
produced.  "  The  proof,"  he  continued,  "  would  be  defective, 
if  the  witnesses  were  men  of  good  character ;  but  the  testimony 
comes  from  William  A.  Richardson  and  Manuel  Castro,  both 
of  whom  have  been  made  utterly  infamous  by  being  detected 
in  the  commission  of  wilful  and  corrupt  perjuries.  ,  .  . 
The  seal  affixed  to  Micheltorena's  letter  is  a  manifest  for- 
gery." The  Supreme  Court  reversed  Judge  McAllister's  de- 
cision in  the  United  States  court  in  California,  and  voided  the 
claim.34 

Also  it  cast  out  the  claim  of  the  executors  and  heirs  of 
Augustin  De  Yturbide,  involving  an  alleged  grant  of  twenty 
leagues  square  of  land  equal  to  four  hundred  square  leagues. 
This  claim  was  based  upon  a  grant  alleged  to  have  been  made 
by  the  Mexican  Government  in  1822,  to  President  Yturbide 
for  "  services."  The  Supreme  Court  rejected  it  on  the  tech- 
nical ground  that  the  claimants  had  not  filed  their  appeal  in 
the  prescribed  time.35 

Teschmaker,  George  H.  Howard  and  others  placidly  came 
forward  with  a  claim  to  sixteen  square  leagues  of  land  in 
Napa  County,  as  having  been  granted  to  the  Vallejo  brothers, 
in  1838,  by  their  brother  M.  G.  Vallejo,  "  commandante  gen- 
eral." The  complicity  of  United  States  government  officials 
was  shown  by  the  fact  that  George  H.  Howard,  one  of  the 
claimants  to  this  grant,  had  been  the  Government  law  agent 

ss  XXIII  Howard,  353. 

34  U.  S.  vs.  Garcia,  XXII  Howard,  275-276. 

35  Ibid.,  290. 


458  HISTORY   OF   THE   SUPREME   COURT 

before  the  United  States  Board  of  Land  Commissioners,  the 
duty  of  which  was  $p  pass  upon  land  claims.  This  fact  of 
Howard's  complicity  in  allowing  claims  to  pass  unchallenged 
was  again  shown,  twenty  years  later  —  in  1878  —  in  the  case 
of  the  Throckmorton  claim  in  which  claim  Howard  was  also 
interested  together  with  the  notorious  perjurer,  W.  A.  Rich- 
ardson, and  others.36  The  attempt  to  get  a  validation  of  the 
Vallejo  claim  was  unsuccessful ;  Attorney-General  Stanton 
proved  to  the  satisfaction  of  the  Supreme  Court  that  the  Val- 
lejos,  Juan  Castenada  and  other  witnesses  were  professional 
perjurers.37  The  Supreme  Court  rejected  this  particular 
claim,38  but  two  decades  later,  as  we  shall  see,  the  Supreme 
Court  .validated  the  notorious  Throckmorton  claim. 

After  Attorney-General  Stanton  had  exposed  the  forgeries 
and  perjuries  of  the  witnesses  in  the  case  of  the  Fuentes  claim 
to  eleven  leagues  near  San  Jose,  the  Supreme  Court  of  the 
United  States  rejected  the  claim.  ".  .  .  No  court  in  Cal- 
ifornia, where  Manuel  Castro's  achievements  are  known," 
Attorney-General  Stanton  said,  "  would  pronounce  a  judg- 
ment upon  his  testimony.  Abrego  was  incontestibly  proved 
to  be  guilty  of  forgery  in  the  Lirnantour  case,  and  the  fact 
was  so  announced  by  the  court.  .  .  .  It  is  not  at  all  diffi- 
cult to  see  how  and  when  this  grant  was  fabricated.-  It  is 
the  handwriting  of  Manuel  Castro,  a  part  of  whose  business 
consisted  in  forging  land  grants.  .  .  ." 39 

The  Great  Limantour  Frauds. 

The  "  Limantour  swindle,"  to  which  frequent  reference  has 
been  made,  was  the  audacious  promotion  of  eight  claims  by 
Jose  Y.  Limantour.  On  six  of  these  alleged  grants  he  claimed 

30  98  U.  S.  Reports,  68-71. 

37  In  the  Case  of  Luco  vs.  U.  S.,  it  was  proved  that  General  Mariano 
Vallejo  had  forged  a  grant;  the  claim  was  rejected  on  that  ground 
alone. 

38  XXII  Howard,  395. 

89  XXII  Howard's  Reports,  457-458. 


UNDER   CHIEF  JUSTICE  TANEY  459 

not  less  than  one  hundred  and  thirty-four  square  leagues 
(924.34  square  miles)  or  594,783.38  square  acres. 

His  claims  were  based  upon  alleged  grants  by  Micheltorena 
"  for  advances  in  money  and  goods  "  to  the  Mexican  Govern- 
ment, Department  of  California.  But  he,  or  rather  those  be- 
hind him,  overreached  themselves.  They  claimed  under  those 
six  alleged  grants  not  only  vast  tracts  of  agricultural,  grazing, 
timber  and  mineral  lands  but  they  also  presented  two  other 
claims  to  at  least  three-fourths  of  the  city  of  San  Francisco, 
of  a  then  assessed  value  of  $15,000,000,  with  its  wharves, 
street  markets,  etc.  Limantour  also  claimed  islands  in  the 
harbor  on  which  the.  United  States  Government  had  spent 
great  sums  in  erecting  lighthouses,  coast  defenses,  buildings 
and  other  works.  Parts  of  the  Limantour  claims  were  re- 
jected by  the  Board  of  Land  Commissioners,  but  the  claims 
to  four  square  leagues  in  San  Francisco  and  to  the  harbor 
islands  were  confirmed. 

The  consequence  was  that  a  powerful  combination  including 
the  owners  of  real  estate  in  San  Francisco,  the  City  of  San 
Francisco,  corporations  such  as  the  Pacific  Mail  Steamship 
Company  and  the  United  States  Government  set  to  work  re- 
lentlessly to  expose  and  defeat  the  conspirators.  Neither 
money  nor  energy  was  spared.  The  Government  uncovered 
enough  evidence  to  ask  for  a  reopening  of  the  case  and  to 
prove  to  the  complete  satisfaction  of  the  court  that  the  grants 
had  been  forged.40 

40  The  trial  of  the  case  brought  out  many  remarkable  facts.  It  was 
shown  that  a  great  number  of  blank  grants  with  the  names  of  Gov- 
ernors Micheltorena  and  Bocanegra  attached,  or  purporting  to  be  at- 
tached, on  genuine  Mexican  Government  stamped  paper  of  the  years 
1842  and  1843,  had  been  in  circulation  in  California  since  the  ratification 
of  the  treaty.  These  blanks  had  been  used  for  the  purpose  of  fabri- 
cating grants  to  land.  Limantour  and  Jouan,  one  of  his  confederates, 
had  brought  a  number  of  the  stamped  blanks  to  California,  in  1852. 
It  was  also  disclosed  that  there  was  a  secret  association  of  men  leagued 
together  for  the  purpose  of  forging  land  grants;  this  gang  operated 
in  three  different  parts  of  California.  See,  "  Case  of  U.  S.  vs.  Liman- 
tour, Transcript  of  Record,"  etc.,  1858,  Vol.  Ill :  354-356. 


460  HISTORY   OF   THE   SUPREME   COURT 

In  June,  1858,  Judge  Hoffman,  in  the  U.  S.  District  Court 
at  San  Francisco  declared  all  the  claims  spurious,  and  voided 
them.41  Judge  Hoffman  declared  that  "  the  proofs  of  fraud 
are  as  conclusive  and  irresistible  as  the  attempted  fraud  itself 
has  been  flagrant  and  audacious." 

Limantour  was  twice  indicted,  and  was  held  in  $35,000  bail. 
Pending  trial,  he  and  his  witnesses,  in  1858,  fled  to  Mexico, 
and  never  returned  to  California  42  —  an  absence  very  satis- 
factory to  certain  other  land  claimants  of  the  origin  of  whose 
alleged  grants  he  and  his  confederates  knew  too  much.  Those 
claimants,  it  was  believed,  facilitated  his  flight,  took  care 
that  he  did  not  return,  and  breathed  easier  in  pushing  their 
claims  with  Limantour  and  his  forging  and  perjuring  crew  at 
a  safe  distance. 

As  a  matter^  of  fact,  however,  many  of  the  owners  of  San 
Francisco  property  who  were  intent  upon  proving  the  Liman- 
tour claims  fraudulent,  had  themselves  acquired  their  valuable 
city  land  by  fraud.  The  case  of  Field  vs.  Seabury  et  al.  re- 
vealed how,  in  1848,  the  Common  Council  of  San  Francisco 
began  fraudulently  and  corruptly  disposing  of  municipal  land 
to  themselves,  or  to  their  accomplices,  and  how  Alcalde  or 
Mayor  Leavenworth  received  his  large  share.43  Leavenworth, 
for  example,  in  1848  granted  an  extensive  plot  at  Washington 
and  Clay  Streets  to  William  C.  Parker  who  then  deeded  it 
back  to  Leavenworth;  one-half  of  this  plot  brought  $75,000 
in  1858. 

We  have  given  some  examples  of  claims  rejected  by  the 
Supreme  Court  of  the  United  States.  One  reason  for  their 
lack  of  success  was,  as  we  have  noted,  the  bungling,  amateur- 
ish manner  in  which  the  evidence  was  presented.  But  this 
frequently  was  only  an  extrinsic  reason.  Whenever  claims 

41  Hoffman's  Reports:  Land  Cases,  etc.,  389-451. 

42  See,  Case  of  Reese  vs.  U.  S.,  IX  Wallace's  Reports,  Supreme  Court 
of  the   U.    S.,    13-22.    This   action    involved   one   of   the   sureties   of 
Limantour's  bail  bonds. 

48  XIX  Howard's  Reports,  330. 


UNDER   CHIEF   JUSTICE   TANEY  461 

held  by  comparatively  uninfluential  persons  conflicted  with 
the  claims  or  designs  of  powerful  corporations,  puissant  per- 
sonages, or  of  municipalities,  the  whole  force  of  Government 
was  energetically  and  earnestly  set  at  work  contesting  the  ob- 
jectionable claims.  The  Government,  it  is  true,  fought  many 
claims  with  seeming  impartiality,  but  in  numerous  cases  its 
contest  was  only  nominal,  and  often  bore  signs  of  being  a 
feigned  activity  for  the  purpose  of  allowing  the  high  tribunal 
at  Washington  to  validate  certain  secretly- favored  claims. 
That  the  weight  of  testimony  was  not  the  only  factor  influ- 
encing the  decisions  of  the  Supreme  Court  of  the  United  States 
was  shown,  for  instance,  in  the  claim  of  Juan  Jose  Gonzales  to 
a  tract  of  one  league  in  length  and  three-quarters  of  a  league 
in  breadth,  alleged  to  be  based  on  a  grant  given  by  the  Mexican 
Governor  Figueroa,  in  1833.  Although  there  was  only  one 
witness  to  prove  the  genuineness  of  the  title,  the  Supreme 
Court  of  the  United  States  declared  it  valid.44 


Corruption  of  Officials. 

There  were  few  of  the  United  States  officials  in  California 
who  were  not  financially  interested  in  the  promotion  of  fraudu- 
lent land  grants.  In  1853,  f°r  instance,  Vincente  Gomez  ap- 
plied, through  his  attorney,  Pacificus  Ord,  for  confirmation 
of  an  alleged  grant  of  four  square  leagues.  The  Board  of 
Land  Commissioners  rejected  the  claim.  Gomez  then  ap- 
pealed to  the  United  States  District  Court,  in  San  Francisco. 
Who  was  the  United  States  District  Attorney  there?  None 
other  than  Pacificus  Ord.  Upon  Ord's  representation  that 
the  claim  was  a  valid  one,  the  court  confirmed  it.  Jn  1859 
Attorney-General  Black  presented  the  proof  to  the  United 
States  Supreme  Court  that  Gomez  had  previously  conveyed 
one-half  of  the  tract  to  Ord,  when  Ord  was  United  States 
District  Attorney.  Thereupon,  the  Supreme  Court  of  the 

**  Gonzales  vs.  U.  S.,  XX  Howard,  173. 


462  HISTORY   OF   THE    SUPREME    COURT 

United    States    reversed    the    lower    court,    and    voided    the 
claim.45 

To  such  a  scandalous  extent,  also,  were  district  judges  in- 
terested in  cases  of  land  grants  pending  before  them,  and  so 
many  scandals  arose,  that  Congress  found  it  necessary,  in 
1864,  to  pass  an  act  requiring  district  judges  to  transfer  all 
cases  of  land  claims  in  which  they  were  interested  to  the 
United  States  Circuit  Court  which  was  to  have  jurisdiction.46 

The  Reading  Claim  Confirmed. 

Of  the  many  extensive  land  claims  confirmed  by  the  Su- 
preme Court  of  the  United  States,  only  a  few  will  be  described 
here.  One  of  such  claims  was  that  of  Pearson  B.  Reading 
for  six  square  leagues  on  the  Sacramento  River.  Lewis  Cass, 
in  the  United  States  Senate,  was  one  of  the  principal  pushers 
of  this  claim.  Reading  was  an  American  citizen  who  went 
to  California  in  1842  and  professed  Mexican  citizenship ;  he 
claimed  that  Micheltorena  gave  him  the  grant  in  1844.  When 
the  Mexican  War  broke  out,  he  joined  the  United  States 
troops.  The  Government  hotly  contested  his  claim,  urging 
that  the  grant  had  never  received  the  approval  of  the  De- 
partmental Assembly,  and  that  under  the  laws  of  Mexico, 
Reading  could  not  hold  such  a  grant,  doubly  so  because  he 
had  been  treacherous  to  the  country  from  which  he  claimed 
his  grant. 

The  majority  of  the  Supreme  Court  of  the  United  States, 
however,  in  1855,  confirmed  his  claim,  upon  two  main  prece- 
dents—  one  precedent  that  of  the  decision  of  Chief  Justice 
Marshall  in  the  case  of  Taylor  vs.  Brown  (in  1809),  the 
other  precedent  the  decision  in  the  Fremont  case.  Justice 
Wayne,  in  writing  the  court's  opinion,  said  that  while  it  was 
true  that  a  title  did  not  become  definitive  until  it  had  received 

45  See,  U.  S.  vs.  Gomez,  XXIII  Howard's  Reports,  etc.,  327-341,  and 
III  Wallace's  Reports,  752-767. 

46  XIII  Statutes  at  Large,  333. 


UNDER   CHIEF   JUSTICE   TANEY  463 

the  approval  of  the  Departmental  Assembly,  yet  an  immediate 
vested  interest  had  passed  to  the  grantee.  If  the  approval  of 
the  Departmental  Assembly  had  not  been  obtained,  that  was 
the  Mexican  governor's  fault,  not  Reading's.  That  Reading 
became  a  rebel  against  Mexico,  the  decision  further  read,  fur- 
nished no  reason  for  forfeiture. 

Justice  Daniel  strongly  dissented.  Reading,  he  said,  "  can 
have  no  rights  to  the  claim  from  or  through  the  Mexican 
government  to  which  he  became  an  open  enemy.  By  his  con- 
duct he  completely  abrogated  every  such  right,  and  became, 
as  respects  that  government,  punishable  as  a  State  criminal ; 
and  thus  not  only  failed  to  obtain  that  sanction  without  which 
his  title  was  defective,  namely,  the  approbation  of  the  De- 
partmental Assembly  of  Mexico,  but,  by  his  own  voluntary  con- 
duct, rendered  its  procurement,  upon  every  principle  of  public 
law,  public  or  political  necessity,  or  of  private  morality,  alto- 
gether impossible."  47 

Other  Claims  Validated. 

At  the  same  time,  December,  1855,  the  majority  of  the 
Supreme  Court  of  the  United  States  confirmed  many  other 
claims.  Maria  de  Arguello  and  associates  claimed  twelve 
square  leagues  of  land  bordering  four  leagues  on  the  Bay  of 
San  Francisco  and  extending  back  to  the  mountains.  Now, 
as  we  have  seen,  the  Mexican  laws  prohibited  the  granting 
of  sea-coast  territory.  In  allowing  Arguello,  etc.,  four  leagues, 
the  majority  of  the  Supreme  Court  (Wayne  writing  the 
opinion)  circumvented  that  point  by  saying  that  they  did  not 
believe  the  Mexican  Government's  policy  had  been  to  con- 
fine native  citizens  to  the  interior,  and  that  it  did  not  mean 
prohibition  of  grants  of  land  to  native  citizens  for  their  own 
use!  Justice  Daniel  also  denounced  this  decision  in  severe 
terms  extending  beyond  the  usual  judicial  restraint.48 

47  U.  S.  vs.  Reading,  XVIII  Howard's  Reports,  1-16. 

48  Arguello  et  al.  vs.  U.  S.,  XVIII  Howard,  539-553. 


464  HISTORY   OF  THE   SUPREME   COURT 

In  the  same  month  the  Supreme  Court  confirmed  the  Vaca 
and  Pena  claim  to  a  large  tract  of  land  on  the  Sacramento 
River,  and  the  Larkin-Misroon  claim  to  a  tract  eleven  leagues 
long  and  a  league  wide  on  the  same  river.  These  were 
alleged  grants  by  Micheltorena ;  the  Government  especially 
denounced  the  Larkin-Misroon  claim  as  spurious.  This  al- 
leged grant  was  purported  to  have  been  given,  in  1844,  to 
Manuel  Jimeno,  Secretary  of  the  Mexican  Government  in  Cal- 
ifornia and  conveyed  to  Larkin  (then  American  Consul  at 
Monterey)  and  Misroon. 

Concurring  with  Justice  Daniel  in  a  dissenting  opinion  Jus- 
tice Campbell  vehemently  denounced  the  Larkin  claim. 
".  .  .  The  evidence,"  he  wrote,  "  satisfies  me  that  this  claim 
was  fabricated  after  the  difficulties  between  the  United  States 
and  Mexico  had  occurred,  with  a  view  to  enable  the  American 
consul  at  Monterey  to  profit  from  it,  in  the  event  of  the  ces- 
sion of  the  country  to  the  United  States.  I  lay  no  stress  upon 
the  fact  that  the  papers  are  found  in  the  archives.  I  pre- 
sume,"—  Campbell  added  with  sardonic  significance, — "  Jimeno 
was  the  keeper  of  those  archives." 4D  Justice  Campbell 
further  showed  that  neither  Jimeno  nor  Larkin  had  ever  en- 
tered upon  the  land,  or  occupied  it. 

Justice  Daniel's  Scathing   Opinion. 

Making  his  dissenting  opinion  cover  the  Arguello,  Vaca- 
Pena  and  Larkin-Misroon  decisions,  Justice  Daniel  wrote  an 
uncommonly  biting  opinion,  denouncing  those  decisions  as 
subversive  of  justice  and  public  policy  because  of  their  "  in- 
citing and  pampering  a  corrupt  and  grasping  spirit  of  specula- 
tion and  monopoly."  He  pointedly  went  on  to  say:  ".  .  . 
And  it  will  very  probably  be  developed  in  the  progress  of  the 
struggle  or  scramble  for  monopoly  of  the  public  domain,  that 
many  of  the  witnesses  upon  whose  testimony  the  novel  and 

49  XVIII  Howard's  Reports,  565. 


UNDER   CHIEF   JUSTICE   TANEY  465 

sturdy  Mexican  code  of  practise  or  seizure  is  to  be  estab- 
lished, in  abrogation  of  the  written  law,  are  directly  or  im- 
mediately interested  in  the  success  of  a  monopoly  by  which, 
under  the  countenance  of  this  court,  principalities  are  won  by 
an  affidavit,  and  conferred  upon  the  unscrupulous  few,  to  the 
exclusion  and  detriment  of  the  many,  and  by  the  sacrifice  of 
the  sovereign  right  of  the  United  States.  .  .  ." 

Justice  Daniel  then  proceeded  to  describe  the  time  and  cir- 
cumstances "  under  which  these  enormous  pretensions  have 
originated";  how  in  Mexico 'the  period  had  been  one  of  in- 
cessant agitation,  disorder  and  revolution,  men  seizing  upon 
power  in  rapid  succession,  and  either  looting  or  becoming  the 
instruments  of  looters.  All  the  alleged  grants,  he  said,  were 
deficient  in  the  requisites  indispensable  to  impart  validity. 
Yet  they  had  been  boldy  presented  for  confirmation.  They 
had  originated  "  in  practical  and  temporary  usurpations  of 
power;  and  that,  amidst  scenes  of  violence  and  disorder. 
.  .  ."  Notwithstanding  the  avowed  character  of  those  al- 
leged grants,  "  which  ought  to  consign  them  to  the  sternest 
reprobation,"  those,  said  Justice  Daniel  disgustedly,  were  the 
circumstances  constituting  "  the  merits  by  which  they  com- 
mend themselves  to  the  countenance  and  support  of  a  tribunal 
whose  highest  function  is  the  assertion  of  law,  justice,  integ- 
rity, order  —  the  dispensation  of  right  equally  to  all."  Con- 
cluding, Justice  Daniel  said  that  he  could  conceive  of  no  claim 
whatsoever  to  extending  favors  to  "  the  grasping  and  un- 
scrupulous speculator  and  monopolist,  and  thus  excluding  the 
honest  settler  and  retarding  the  population  of  new  States."  50 

The  Validating  Process  Continues. 

Never  had  so  caustic  and  telling  an  excoriation  of  the  Su- 
preme Court  been  made  by  one  of  its  own  members.  If 
the  majority  winced,  they  gave  no  sign.  As  though  vindi- 

60  XVIII  Howard's  Reports,  552-553. 


466  HISTORY   OF   THE    SUPREME    COURT 

eating  themselves,  and  proving  their  consistency,  they  went  on 
confirming  other  notorious  claims. 

In  December,  1856,  they  confirmed  the  large  and  rich  Per- 
alta  claim  of  five  leagues,  running  south  from  the  Bay  of 
San  Francisco  over  the  town  of  Oakland,  and  east  to  the  moun- 
tains. This  was  a  grant  alleged  to  have  been  made  in  1820,  and 
renewed  by  Micheltoreria,  in  i844.51  The  Pedrorena  claim  to 
eleven  sitios  (equal  to  eleven  leagues)  in  San  Diego  County 
was  confirmed  in  the  same  month ;  this  claim  was  based  upon 
an  alleged  grant  made  by  Pio  Pico  in  i845.52 

The  Castillero  claim  was  validated  by  the  Supreme  Court 
in  1858.  It  was  a  claim  embracing  a  large  tract  of  land  near 
Santa  Clara,  but  in  particular  its  value  lay  in  the  fact  that  it 
included  the  "  New  Alamaden  "  quicksilver  mine  then  pro- 
ducing at  least  $1,000,000  returns  a  year,  and  valued  in  total 
at  $25,000,000.  The  Castillero  alleged  grant  had  become  the 
property  of  American  and  foreign  capitalists.  One  of  their 
counsel  was  Hall  McAllister,  the  regular  attorney  for  the  Pacific 
Mail  Steamship  Company.  This  company  had  consecutively, 
from  1847,  bribed  Congress  to  get  a  large  annual  mail  sub- 
sidy ; 53  in  the  year  1872  alone,  so  an  investigating  committee 
of  Congress  later  reported,  it  expended  nearly  $1,000,000  in 
bribes  to  get  an  act  passed  by  Congress  giving  it  an  addi- 
tional mail  subsidy  of  $500,000  a  year  for  ten  years.54  The 
Government  charged  that  the  papers  in  the  Castillero  claim 
were  forged  and  antedated,  but  the  Supreme  Court  held  that 
the  certified  copies  of  the  originals  were  genuine.  The  Su- 
preme Court  chiefly  depended  in  its  decision  upon  the  fact 

51  Case  of  U.  S.  vs.  Dominigo  and  Vincente  Peralta,  XIX  Howard's 
Reports,  etc.,  343-349.     Justice  Daniel  dissented. 

52  U.  S.  vs.  Sutherland,  guardian,  etc..  XIX  Howard,  363. 

63  See,  "  History  of  the  Great  American  Fortunes,"  Vol.  II. 

54  House  Report  No.  269,  Forty-third  Congress,  Second  Session,  1874-- 
75,  Vol.  II :  xvii.  The  committee  reported  that  "  a  sum  of  nearly  one 
million  dollars  appears  to  have  been  disbursed  in  some  sort  of  connec- 
tion with  the  passage  of  the  act." 


UNDER  CHIEF  JUSTICE  TANEY  467 

that  one  of  the  former  Mexican  governors,  Alvarado,  who  was 
alleged  to  have  made  the  grant,  testified  that  the  signature 
was  his.55  But  the  notorious  fact  that  Alvarado  was  a  corrupt 
political  adventurer,  who  had  his  price,  and  a  cheap  one  at  that, 
was  ignored. 

Much  of  the  nearly  nine  million  acres  in  California  ob- 
tained on  private  land  claims  were  secured  in  these  years  by 
grace  of  decisions  of  the  Supreme  Court  of  the  United  States. 
Year  after  year  the  Supreme  Court  continued  validating 
claims  the  character  of  which  did  not  differ  from  that  of  the 
claims  specifically  described  here.  Of  the  whole  number  con- 
firmed by  the  Supreme  Court  during  a  period  of  about  fifty 
years,  beginning  in  1854,  several  score  were  validated  when 
Taney  was  Chief  Justice. 

The  same  acidulous  differences  and  dissensions  among  the 
members  of  the  Supreme  Court  evidenced  in  the  private  land- 
claim  cases  were  evidenced  in  other  cases.  To  the  tradition 
carefully  inculcated  in  the  great  mass  of  people  that  the  de- 
cisions of  the  Supreme  Court  should  be  treated  with  una- 
bated respect,  dissenting  members  of  the  court  did  not  them- 
selves subscribe.  From  no  critic  did  sharper  denunciations 
and  reproaches  proceed  than  from  the  court's  own  members. 

Justice  Campbell  Denounces  a  Decision. 

An  unprecedented  case  was  decided  by  the  Supreme  Court, 
in  December,  1855.  The  State  of  Ohio  had  passed  an  act  tax- 
ing banks ;  thereupon  the  novel  sight  was  presented  of  an  in- 
corporator,  in  the  case  of  Dodge  vs.  Woolsey,  suing  the  cor- 
poration of  which  he  was  a  member,  with  the  object  of  having 
the  act  declared  unconstitutional.  When  the  majority  of  the 
Supreme  Court  declared  the  act  unconstitutional  because  it  im- 
paired the  obligation  of  a  contract,  Justices  Catron,  Daniel  and 

65  U.  S.  vs.  Castillero,  XXIII  Howard's  Reports,  etc.,  464-469. 


468  HISTORY  OF  THE   SUPREME   COURT 

Campbell  dissented.  Justice  Campbell's  dissenting  opinion 
was  both  remarkable  and  severe;  remarkable  in  that  it  de- 
veloped, in  essence,  at  least,  even  at  that  early  day,  the  now 
accepted  theory  and  fact  of  dominant  interests  and  class  strug- 
gles. 

Comparing  certain  conditions  in  Ohio  with  those  in  Turkey, 
Justice  Campbell  said :  ".  .  .  In  that  empire,  the  ecclesias- 
tical and  judicial  is  the  dominant  interest,  for  the  ulemas 
are  both  priests  and  lawyers,  just  as  the  corporate  money  in- 
terest is  dominant  in  Ohio,  and  in  either  country  that  interest 
claims  exemption  from  the  usual  burdens  and  ordinary  legis- 
lation of  the  State."  He  then  asked  that  if  a  State  were  to 
become  "  the  victim  of  vicious  legislation,  its  property  alien- 
ated, its  powers  of  taxation  renounced  in  favor  of  chartered 
associations,  and  the  resources  of  the  body  politic  cut  off,  what 
remedy  have  the  people  against  the  misgovernment  ? "  He 
answered :  "  Under  the  doctrines  of  this  court  none  is  to  be 
found  in  the  Government,  and  none  exists  in  the  inherent 
powers  of  the  people,  if  the  wrong  has  taken  the  form  of 
a  contract.  The  most  deliberate  and  solemn  acts  of  the  peo- 
ple would  not  serve  to  redress  the  injustice,  and  the  over- 
reaching speculator  upon  the  facility  or  corruption  of  their 
legislature  would  be  protected  by  the  powers  of  this  court  in 
the  profits  of  his  bargain.  .  .  ." 

Justice  Campbell  went  on  to  say  that  such  decisions  "  will 
establish  on  the  soil  of  every  State  a  caste  made  up  of  com- 
binations of  men  for  the  most  part  under  the  most  favorable 
conditions  in  society,  who  will  habitually  look  beyond  the  in- 
stitutions and  authority  of  the  State  to  the  central  government 
for  the  strength  and  support  necessary  to  maintain  them  in  the 
enjoyment  of  their  special  privileges  and  exemptions.  The 
consequence  will  be  a  new  element  of  alienation  and  discord 
between  the  different  classes  of  society,  and  the  introduction  of 
a  fresh  cause  of  disturbance  in  our  own  distracted  political  and 
social  system.  In  the  end  the  doctrine  of  this  decision  may 


UNDER   CHIEF   JUSTICE   TANEY  469 

lead  to  a  violent  overturn  of  the  whole  system  of  corporate 
combinations."  50 

The  Dred  Scott  Case. 

In  the  epochal  Dred  Scott  decision,  the  differences  among 
the  Justices  were  as  pronounced  and  acute.  With  this  de- 
cision, so  momentous  in  its  consequences,  everyone  is  tolera- 
bly familiar,  but  the  singular  circumstances  preceding  the 
actual  and  final  decision  are  little  known. 

In  1834,  Dred  Scott,  a  negro,  was  the  slave  of  Dr.  Emer- 
son, in  Missouri,  and  was  taken  by  his  master  to  Rock  Island, 
Illinois.  Two  years  later  Scott  married  Harriet,  another 
slave  of  Emerson,  and  in  1838  returned  to  Missouri  with  his 
master.  Not  until  then  did  Dred  Scott  discover  that  the 
statutes  of  Illinois  prohibited  slavery,  and  that  his  transfer  to 
Illinois  had,  in  reality,  made  him  a  free  man.  In  1852  Emerson 
sold  his  slaves  to  J.  F.  A.  Sand  ford,  of  New  York  City.  Emer- 
son having  whipped  Scott  severely,  Scott  was  then  directed  to 
bring  suit  for  assault  and  battery.  Scott  won  his  action  in  a 
Missouri  court.  This  decision  was  reversed  by  the  Supreme 
Court  of  Missouri.  Under  the  form  of  the  case  of  Dred 
Scott  vs.  Sandford,  the  case  came  up  on  appeal  before  the  Su- 
preme Court  of  the  United  States. 

The  great  importance  of  the  case  was  fully  recognized. 
But,  at  the  outset,  the  Supreme  Court  of  the  United  States 
had  no  intention  of  going  to  the  lengths  later  determined 
upon.  When  Taney  assigned  Justice  Nelson  to  write  the 
court's  opinion,  it  was  the  understood  plan  that  the  real  is- 
sues were  to  be  avoided ;  nothing  was  to  be  said  of  the  con- 
stitutionality or  unconstitutionality  of  the  Missouri  Com- 
promise Act  or  other  laws  restricting  the  slave  area;  the 
decision  was  to  be  a  brief  one,  affirming  the  decision  of  the 
Missouri  Supreme  Court,  and  treating  the  issues  as  local  ques- 

56  XVIII  Howard's  Reports,  371-373.  Justices  Catron  and  Daniel 
concurred  in  Campbell's  conclusions. 


47O  HISTORY  OF  THE   SUPREME   COURT 

tions  with  which  the  Supreme  Court  of  the  United  States  did 
not  care  to  concern  itself  or  interfere. 


The  Court  Secretly  Changes  its  Plan. 

What  happened  next  is  well  related  by  Frederick  Trevor 
Hill  in  his  account  of  the  case : 

"  Before  Mr.  Justice  Nelson  could  prepare  this  opinion, 
however,  the  active  agents  of  the  slave  power  intervened. 
At  dinners,  receptions,  and  social  functions  they  waylaid  the 
judges,  adroitly  importuning  them  to  change  their  plan,  flat- 
tering those  whose  vanity  gave  the  necessary  opening,  ap- 
pealing to  the  ambition  of  others,  and  generally  emphasizing 
the  opportunity  which  lay  before  the  Court  to  fulfill  a  public 
and  patriotic  duty  by  forever  quieting  a  discussion  injurious 
to  the  country's  welfare.  Declare  all  such  restrictions  as  the 
Missouri  Compromise  unconstitutional,  it  was  urged,  and  the 
North  will  acquiesce,  arjd  the  Union  will  be  preserved.  All 
of  the  judges  were  honest  and  conscientious,  but  some  of  them 
were  far  advanced  in  age,  and  the  pressure  which  was  con- 
stantly brought  to  bear  upon  them  was  well  calculated  to  dis- 
turb their  judgment." 

Slave-Holding  Emissaries  at  Work. 

Further  in  his  narrative  of  this  case,  Hill  tells  (what  was 
the  authentic  fact)  that  "  the  most  active  and  persistent  of 
the  emissaries  "  was  Alexander  H.  Stevens,  a  leading  South- 
ern politician  and  later  vice-president  of  the  Confederacy. 
A  letter  of  Stevens  reveals  that  he  was  informed  in  advance 
exactly  what  the  nature  of  the  decision  would  be,  and  pre- 
cisely what  was  happening  in  the  supposedly  secret  and  care- 
fully-guarded councils  of  the  Supreme  Court.  Stevens  was 
fully  aware  of  the  fact  that  the  Missouri  Compromise  Act 
would  be  declared  unconstitutional.  "  How,"  Hill  observes, 


UNDER    CHIEF   JUSTICE   TANEY  471 

"  an  outsider  came  to  be  so  intimately  acquainted  with  what  was 
happening  in  the  secret  conclaves  of  the  judges,  has  never 
been  disclosed,  but  the  information  was  accurate  in  every  par- 
ticular, and  bears  evidence  of  having  been  obtained  at  first 
hand."  " 

Hill  does  not  overstate  when  he  says  that  Stevens  knew  of 
the  exact  moves  of  the  Supreme  Court  at  the  precise  time 
they  were  made.  Writing  from  Washington,  December  15, 
1857,  to  his  brother,  Linton  Stevens,  regarding  the  progress 
of  the  Dred  Scott  case,  then  under  consideration  by  the  Su- 
preme Court,  Alexander  H.  Stevens  thus  announced: 
"...  I  have  been  urging  all  the  influences  I  could  bear 
upon  the  Supreme  Court  to  get  them  to  postpone  no  longer 
the  case  on  the  Missouri  Restriction  before  them,  but  to  decide 
it.  They  take  it  up  to-day.  If  they  decide,  as  I  have  reason 
to  believe  they  will,  that  the  restriction  was  unconstitutional," — 
then,  Stevens  went  on,  that  would  settle  the  question  of  Ter- 
ritorial legislation  over  slavery.58 

« 

The  Deferred  Decision,  and  its  Purport. 

For  political  reasons,  the  decision  was  long  held  back;  not 
until  March  6,  1857  —  two  days  after  Buchanan's  induction 
as  President  —  was  it  made  public. 

The  exultation  that  the  decision  caused  in  the  South,  and 
the  tempestuous  uproar  of  rage  in  the  North,  are  matters  of 
commonplace  historic  knowledge.  By  a  vote  of  seven  to  two, 
the  Supreme  Court  of  the  United  States  declared  that  the 
Missouri  Court,  where  the  case  was  originally  tried,  had  no 
jurisdiction,  and  dismissed  the  suit.  The  majority  decision 
also  denied  the  legal  existence  of  negroes  as  persons;  it  pro- 
nounced them  merchandise  or  property.  The  decision  further 
denied  that  Congress  had  supreme  control  over  the  Terri- 

57  "  Decisive  Battles  of  the  Law." 

58  Johnston  and  Browne's  "  Life  of  A.  H.  Stevens,"  316. 


472  HISTORY   OF   THE   SUPREME   COURT 

tories,  and  refused  to  allow  the  constitutionality  of  the  Mis- 
souri Compromise  Act.  In  his  opinion,  Chief  Justice  Taney 
wrote  of  conditions  among  "  enlightened  nations  "  at  the  time 
of  the  Declaration  of  Independence  when,  said  he  scornfully, 
the  negro  race  was  regarded  "  as  so  far  inferior  that  they  had 
no  rights  which  the  white  rftan  was  bound  to  respect;  and 
that  the  negro  might  justly  and  lawfully  be  reduced  to  slavery 
for  his  benefit." S9  According  to  Taney  and  his  concurring 
associates  this  was  a  fixed,  unchangeable  condition  subject 
neither  to  question,  alteration  nor  interference. 

According  to  a  compilation  made  in  the  year  1850,  it  was 
estimated  that  in  fifteen  slave  States,  having  an  entire  popula- 
tion of  9,612,679,  less  than  200,000  were  slave  owners,  yet 
at  this  time  they  held  3,200,364  slaves.  In  the  slave  States 
there  were  228,136  free  negroes  but  they  were  not  considered 
citizens  or  allowed  to  vote.  By  the  close  of  Buchanan's  ad- 
ministration, says  Wilson  in  his  "  Rise  and  Fall  of  the  Slave 
Power  in  America,"  it  was  estimated  that  the  slave  traffic  had 
grown  to  the  purchase  and  sale  of  30,000  slaves  a  year,  at  a 
market  value  of  $30,000,000.  "  This  trade,  with  its  sad  aggre- 
gate of  suffering  and  sorrow,  on  the  one  part,  of  demoraliza- 
tion and  guilt,  on  the  other,  was  carried  on  unblushingly." 

Senator  Seward  Charges  Collusion. 

On  March  3,  1858,  Senator  Seward  of  New  York,  arose  in 
the  United  States  Senate,  and  in  a  scathing  yet  measured 
speech,  which  caused  a  national  sensation,  denounced  the  Su- 
preme Court  of  the  United  States,  and  accused  it  of  having 
in  its  Dred  Scott  decision  been  in  collusion  with  Buchanan  as 
President-elect  and  President  in  a  conspiracy  to  fasten  slavery 
upon  the  United  States  for  all  time. 

".     .     .     Before  coming  into  office,"  Seward  said,  "he  [Bu- 

59Case  of  Dred   Scott  vs.   Sandford,  XIX  Howard's  Reports,  407, 
Justices  McLean  and  Curtis  were  the  non-concurring  judges. 


UNDER    CHIEF   JUSTICE   TANEY  473 

chanan]  approached,  or  was  approached  by  the  Supreme  Court 
of  the  United  States.  The  day  of  inauguration  came,  the  first 
one  among  all  the  celebrations  of  that  great  national  pageant 
that  was  to  be  desecrated  by  a  coalition  between  the  executive 
and  judicial  departments,  to  undermine  the  national  legisla- 
ture and  the  liberties  of  the  people.  The  President  [Bu- 
chanan], attended  by  the  usual  lengthened  procession,  arrived 
and  took  his  seat  on  the  portico.  The  Supreme  Court  at- 
tended him  there  in  robes  which  yet  exacted  public  reverence. 
The  people,  unaware  of  the  import  of  the  whisperings  carried 
on  between  the  President  and  the  Chief  Justice,  and  imbued 
with  veneration  for  both,  filled  the  avenues  and  gardens  as 
far  away  as  eye  could  reach.  The  President  .  .  .  an- 
nounced (vaguely,  indeed,  but  with  self-satisfaction)  the 
forthcoming  extrajudicial  exposition  of  the  Constitution,  and 
pledged  his  submission  to  it  as  authoritative  and  final.  The 
Chief  Justice  and  his  associates  remained  silent.  ...  It 
cost  the  President,  under  the  circumstances,  little  exercise  of 
magnanimity  now  to  promise  to  the  people  of  Kansas,  on 
whose  neck  he  had,  with  the  aid  of  the  Supreme  Court,  hung 
the  millstone  of  slavery,  a  fair  trial  in  their  attempt  to  cast  it 
off,  and  hurl  it  to  earth,  when  they  should  come  to  organize 
a  State  Government.  Alas !  that  even  this  cheap  promise, 
uttered  with  such  great  solemnities,  was  only  made  to  be 
broken!"  .  .  .G0 

Elsewhere,  in  the  course  of  his  philippic,  Seward  declared: 
".  .  .  The  Supreme  Court  can  reverse  its  judgment  more 
easily  than  we  can  reconcile  the  people  to  its  usurpation. 
Sir,  the  Supreme  Court  attempts  to  command  the  people  of 
the  United  States  to  accept  the  principle  that  one  man  can 
own  other  men;  and  that  they  must  guarantee  inviolability 
of  that  false  and  pernicious  property.  The  people  of  the 
United  States,"  Senator  Seward  went  on,  openly  flouting  and 

60  The  Congressional  Globe,  Part  I,  First  Session,  Thirty- Fifth  Con- 
gress, 1857-1858:  941. 


474  HISTORY   OF   THE    SUPREME    COURT 

defying  the  Supreme  Court's  decision,  "  never  can,  and  they 
never  will,  accept  principles  so  unconstitutional  and  abhorrent. 
Never,  Never!  Let  the  court  recede.  Whether,"  Seward 
threatened,  "  it  recedes  or  not,  we  shall  reorganize  the  court, 
and  thus  reform  its  political  sentiments  and  practices,  and 
bring  them  into  harmony  with  the  Constitution  and  the  laws 
of  Nature.  .  .  ." 61 

For  this  attack  upon  the  Supreme  Court,  Seward  was  ven- 
omously assailed  by  conservatives  and  by  the  representatives 
of  the  slaveholders.  His  accusations  of  collusion  were  de- 
clared to  be  utterly  unfounded,  and  were  pronounced  the  va- 
porings  of  a  mind  either  obsessed  with  partisan  rancor  or 
deranged  with  malignant  hatred.  Even  Northern  opponents 
of  slavery  who  had  faith  in  the  integrity  of  the  Supreme 
Court  of  the  United  States,  could  not  credit  Seward's  grave 
charges,  and  dismissed  them  as  incredible. 

The  same  charges  of  collusion  were  made  by  Abraham  Lin- 
coln in  his  celebrated  debates  with  Senator  Douglas.  Lincoln 
repeatedly  charged  that  the  Dred  Scott  decision  was  the  re- 
sult of  a  conspiracy  to  which  Taney,  Buchanan,  Douglas  and 
others  were  parties.  "  Mr.  Lincoln," —  so  the  literal  report  of 
Douglas'  reply,  at  Ottawa,  111.,  August  21,  1858,  reads,  in 
part, — "  has  not  character  enough  for  integrity  and  truth, 
merely  on  his  own  ipse  dixit,  to  arraign  President  Buchanan, 
President  Pierce  and  nine  judges  of  the  Supreme  Court,  not 
one  of  whom  would  be  complimented  by  being  put  on  an 
equality  with  him."  62 

Truth  of  the  Charges  Established. 

But  that  the  charges  made  by  Seward  and  Lincoln  were  abso- 
lutely true  in  every  respect  is  now  conclusively  established. 

61  Congressional  Globe,  1857-1858,  Part  1 :  943. 

62  This    coarse,    insulting   rejoinder   was    typical    of   the   "  able   and 
cultured"  Douglas,  the  arch  defender  of  slavery  and  of  the  Supreme 
Court. 


UNDER    CHIEF   JUSTICE   TANEY  475 

In  the  recently  issued  "  Works  of  James  Buchanan  " —  twelve 
volumes  in  all  —  edited  by  Prof.  John  Bassett  Moore,  Bu- 
chanan's correspondence  is  given  in  full.  Professor  Moore 
incorporates  two  letters  written  to  Buchanan, —  one  letter 
from  Justice  Catron,  the  other  from  Justice  Grier.  These 
letters,  written  several  weeks  before  the  Dred  Scott  decision 
was  handed  out,  prove  that  the  Supreme  Court  of  the  United 
States  did  approach  Buchanan  previous  to  his  inauguration. 
They  further  show  that  Buchanan  had  brought  some  species 
'  of  pressure  (the  nature  of  which  is  unknown)  upon  the  Su- 
preme Court ;  that  negotiations  were  carried  on  with  the  great- 
est secrecy  between  Buchanan  and  the  Supreme  Court;  and 
that  when  Buchanan  ostentatiously  made  the  pledge  in  his 
inaugural  address  that  he  would  abide  by  the  decision  of 
the  Supreme  Court,  he  knew  in  advance  precisely  what  the 
salient  features  of  that  decision  would  be.  These  facts  are 
now  on  an  incontrovertible  basis. 


Letters  of  Justices  Catron  and  Grier. 

According  to  the  first  of  the  two  letters  reproduced  by  Pro- 
fessor Moore,  Justice  Catron,  under  date  of  February  19, 
1857,  wrote  to  Buchanan  making  suggestions  of  what  Bu- 
chanan might  with  safety  and  propriety  say  in  his  inaugural 
address  about  the  Dred  Scott  case,  and  requesting  Buchanan 
to  write  to  Justice  Grier  and  seek  to  induce  him  to  come  to 
terms.  Justice  Catron's  letter  proceeded: 

"  Will  you  drop  Grier  a  line  saying  how  necessary  it  is  — 
&  how  good  the  opportunity  is,  to  settle  the  agitation  by 
an  affirmative  decision  of  the  Supreme  Court,  the  one  way  or 
the  other.  He  ought  not  to  occupy  so  doubtful  a  ground  as 
the  outside  issue  —  that  admitting  the  constitutionality  of  the 
Mo.  Comp.  line  of  1820,  still,  as  no  domicile  was  acquired  by 
the  negro  at  Fort  Snelling,  &  he  returned  to  Missouri,  he  was 
not  free.  He  has  no  doubt  about  the  question  on  the  main 


476  HISTORY   OF   THE    SUPREME    COURT 

contest,  but  has  been  persuaded  to  take  the  smooth  handle 
for  the  sake  of  peace. 

"  Sincerely  yr.  f rd., 

"J.  CATRON." 

It  is  not  clear  whether  Buchanan  had  previously  written  to 
Catron.  But  it  is  clear  that  Buchanan  followed  Catron's  sug- 
gestions; after  Catron  wrote  the  foregoing  letter,  Buchanan 
wrote  to  Justice  Grier,  and  on  February  23,  1857,  received  a 
reply  in  which  Grier  wrote: 

"  Your  letter  came  to  hand  this  morning.  I  have  taken  the 
liberty  to  shew  it  in  confidence  to  our  mutual  friends  Judge 
Wayne  and  the  Chief  Justice.  We  fully  appreciate  and  con- 
cur in  your  views  as  to  the  desirableness  at  this  time  of  having 
an  expression  of  the  opinion*bf  the  Court  on  this  troublesome 
question.  With  their  concurrence  I  will  give  you  in  confi- 
dence the  history  of  the  case  before  us,  with  the  probable  re- 
sult." 63 

Grier  further  expressed  his  solicitude  that  the  decision 
should  be  so  .rendered  that  it  would  not  seem  a  purely  geo- 
graphical one,  meaning  thereby  that  the  Supreme  Court  should 
be  saved  from  being  discredited,  which  it  would  be  were  the 
decision  made  purely  by  Justices  from  the  slave  States.  A 
significant  consideration,  this. 

In  view  of  these  letters  the  charges  of  collusion  stand 
proved.  Chief  Justice  Taney  was  furious  that  Seward  had 
penetrated  into  and  uncovered  one  of  the  most  carefully  hid- 
den secrets  of  the  Supreme  Court  of  the  United  States. 
"  Taney,"  says  Rhodes,  "  was  so  incensed  at  the  speech  of 
Seward  that  he  told  Tyler,  who  was  afterwards  his  biogra- 
pher, that  had  Seward  been  nominated  and  elected  President 
in  1860,  instead  of  Lincoln,  he  would  have  refused  to  admin- 
ister to  him  the  oath  of  office." 

63  For  a  clear  exposition  of  the  facts  brought  out  by  Prof.  Moore, 
see  an  extended  review  in  The  Independent,  issue  of  August  24,  IQII. 


UNDER    CHIEF   JUSTICE   TANEV  •     477 

Lincoln  Scouts  the  Sacredness  of  the  Supreme  Court. 

When  the  Abolitionists  bitterly  denounced  the  Dred  Scott 
decision,  the  sl^ve  power  came  forward  with  the  'demand  that 
the  Supreme  Court  decision  be  accepted  with  reverent  acquies- 
cence, and  that  no  whisper  of  criticism  should  be  made  against 
that  exalted  tribunal. 

In  the  course  of  his  debates  with  Stephen  A.  Douglas, 
Abraham  Lincoln  spoke  derisively  of  that  attitude.  "  The 
sacredness  that  Judge  Douglas  throws  around  this  decision," 
he  said  at  Chicago,  July  10,  1858,  "  is  a  degree  of  sacredness 
that  has  never  before  thrown  around  any  other  decision.  I 
have  never  heard  of  such  a  thing.  Why,  decisions  apparently 
contrary  to  that  decision,  or  that  good  lawyers  thought  were 
contrary  to  that  decision,  have  been  made  by  that  very  court 
before.  It  is  the  first  of  its  kind ;  it  is  an  astonisher  in  legal 
history.  .  .  .  It  is  based  upon  falsehood  in  the  main  as  to 
the  facts."  64  At  Springfield,  seven  days  later,  Lincoln  again 
adverted  to  the  subject.  ".  .  .  Our  judges,"  said  he,  "  are 
as  honest  as  other  men  and  not  more  so.  They  have,  with 
others,  the  same  passions  for  party,  for  power,  and  the  priv- 
ilege of  their  corps.  Their  maxim  is,  '  boni  judicis  est  am- 
pliare  jurisdictonem'  [it  is  the  part  of  a  good  judge  to  amplify 
jurisdiction]  ;  and  their  power  is  the  more  dangerous  as  they 
are  in  office  for  life,  and  not  responsible,  as  the  other  func- 
tionaries are,  to  the  elective  control.  .  .  ."  °5 

Justice  Clifford's  Appointment. 

Justice  Curtis'  resignation  from  the  Supreme  Court,  soon 
after  this  decision  —  he  had  been  one  of  the  minority  —  was 
followed  by  the  appointment  of  Nathan  Clifford  as  an  Asso- 

04  "  Political  Debates  Between  Hon.  Abraham  and  Hon.  Stephen  A. 
Douglas,"  etc.,  Edition  of  1860:  20. 
«5  Ibid.,  61. 


478  HISTORY   OF  THE   SUPREME   COURT 

ciate  Justice.  Clifford  came  from  Maine ;  had  been  in  the  Maine 
Legislature  from  1830  to  1834,  serving  as  Speaker  of  the 
Maine  House  of  Representatives  in  1833  and  1834.  In  1834 
he  had  become  Attorney-General  of  Maine. 

It  was  during  this  period  that  vast  stretches  of  what  were 
then  called  Maine  "  wild  lands  "  were  acquired  by  a  few  land 
appropriators.  From  1785  to  1812  the  State  of  Massachu- 
setts  —  of  which,  until  1820,  Maine  was  a  part  —  had  sold 
4,086,292  acres  for  the  sum  of  $818,691.14.  Of  those  4,086.- 
292  acres,  a  single  individual  —  William  Bingham  —  bought 
2,000,000  acres,  in  1793,  at  the  insignificant  rate  of  twelve 
and  a  half  cents  an  acre.  In  1816  a  total  of  16,000,000  acres 
of  land,  most  of  it  thick  with  primitive  growth  of  valuable 
timber,  were  left  in  public  ownership.  This  area  rapidly  van- 
ised;  from  1823  to  1834  not  less  than  1,003,450  acres  were 
alienated  into  private  holdings,  mostly  those  of  speculators 
and  lumber  capitalists.  Notwithstanding  the  great  recognized 
value  of  those  timber  lands,  they  were  fraudulently  or  cor- 
ruptly sold  for  an  average  of  forty-six  cents  an  acre.  Subse- 
quently, 1,800,000  more  acres  went,  in  large  part,  into  the 
maws  of  capitalists  from  1834  to  1855 ;  and  year  after  year 
the  process  continued,  until  no  State  domain  was  left. 

In  1838,  Clifford  was  elected  to  Congress;  in  1846  he  be- 
came a  member  of  President  Folk's  Cabinet,  as  Attorney- 
General  of  the  United  States.  One  of  the  most  influential 
members  —  if  not  the  most  influential  member  —  of  this  Cabi- 
net, was,  as  heretofore  noted,  that  notorious  land  speculator 
and  land  grabber  —  Robert  J.  Walker.  After  the  Mexican 
War,  Clifford  was  sent  to  Mexico  as  a  Peace  Commissioner. 
In  1849  ne  returned  to  Portland  to  reengage  in  law.  Presi- 
dent Buchanan  appointed  Clifford  to  the  Supreme  Court  of 
the  United  States  upon  the  recommendation  of  United  States 
Senator  James  Ware  Bradbury,66  whose  law  partner  in  Maine 

60  See,   "Collections    Of   The   Maine   Historical    Society,"   Vol.    IX, 
'  Memoir  of  Nathan  Clifford,"  by  James  Ware  Bradbury. 


UNDER    CHIEF    JUSTICE    TANEY  479 

was  Lot  M.  Morrill,  who  himself  became  United  States  Sena- 
tor. One  of  the  members  of  the  Morrill  family  was  Land  Agent 
of  Maine.  The  politics  of  that  State,  of  both  political  par- 
ties, were  largely  controlled  by  a  few  families  such  as  the 
Coburns.  Beginning  as  cattle  dealers,  Abner  Coburn  and 
Philander  Coburn  acquired  450,000  acres,  or  more  than  seven 
hundred  square  miles,  of  land  in  Maine ; 67  the  Coburn  estate 
is  at  this  clay  enormous.  Bradbury  was  one  of  the  promoters 
of  the  Kennebec  and  Portland  Railroad.  He  was  also  one  of 
the  capitalists  behind  the  Somerset  and  Kennebec  Railroad, 
of  which  he  was  a  director,  and  of  which  Abner  Coburn  be- 
came president,  after  Bradbury  had  consummated  its  con- 
solidation with  the  Portland  and  Kennebec  Railroad.  Those 
railroads  are  now  part  of  the  Maine  Central  Railroad. 

Philip  Brown,  eldest  son  of  John  Bundy  Brown,  was  married 
to  Fanny,  daughter  of  Justice  Clifford ;  John  Bundy  Brown's 
daughter,  Ellen,  became  the  wife  of  W.  H.  Clifford,  son  of 
Justice  Clifford.  Who,  it  may  be  asked,  was  John  Bundy 
Brown?  One  of  the  very  foremost  capitalists  of  Maine.  He 
was  the  head  of  the  Portland  Sugar  Company  which,  at  one 
time,  employed  nearly  a  thousand  workers ;  he  was  one  of 
the  original  incorporators  and  directors  of  the  Atlantic  and 
St.  Lawrence  Railroad  (now  the  Atlantic  Division  of  the 
Grand  Trunk  Railway)  ;  he  was  interested  in  the  Portland 
and  Kennebec  Railroad  and  the  Maine  Central  Railroad;  he 
was  the  largest  stockholder  in  the  Portland  and  Ogdensburg 
Railroad ;  a  director  for  many  years  in  the  Portland,  Saco  and 
Portsmouth  Railroad ;  for  a  period  a  director  in  the  Erie  Rail- 
way ;  had  advanced  large  sums  to  the  Toledo,  Peoria  and  War- 
saw Railroad ;  was  also  at  various  times  a  director  of  the  Port- 
land Company,  the  Rolling  Mills  Company,  the  Kerosene  Oil 

67  "  Biographical  Encyclopedia  of  Maine,  igth  Century,"  436.  Abner 
Coburn  was  later  elected  Governor  of  Maine.  Through  his  con- 
nection with  the  Northern  Pacific  Railroad,  he  personally  acquired 
50,000  acres  of  land  along  the  route  of  that  railroad.  The  Coburns 
were  also  ewners  of  banks. 


4&O  HISTORY   OF   THE   SUPREME   COURT 

Company,  the  Maine  Steamship  Company,  the  First  National 
Bank  and  other  corporations.68  His  firm  —  J.  B.  Brown  and 
Sons  —  was  the  largest  private  banking  house  in  Portland, 
and  Brown's  private  mansion  the  most  capacious  and  costly 
and  "  magnificent  "  in  that  city.68 

Chief  Justice  Taney  Discredited. 

The  breaking  out  of  the  Civil  War  found  Taney  much 
despised  and  discredited  in  the  North;  for  his  part  in  the 
Dred  Scott  decision  he  was  generally  viewed  with  detestation. 
Although  it  was  well  known  that  his  sympathies  were  with 
the  South,  he  cautiously  made  no  public  utterances,  and  re- 
mained Chief  Justice  until  the  day  of  his  death  in  1864.™  He 
seems  to  have  ha>d  need  of  the  salary  attached  to  the  posi- 
tion. According  to  Tyler,  who,  as  we  have  narrated,  was 
chosen  by  Taney  to  write  his  biography,  "  Taney's  small  for- 
tune was  invested  at  the  time  of  the  Civil  War  exclusively  in 
Virginia  State  stocks."  A  man  of  originally  tall  stature  — 
upwards  of  six  feet — Taney's  constitution,  always  delicate, 
had  been  undermined  by  close  application  to  musty  legal  lore 
and  sedentary  habits.  In  his  last  years  "  he  had  become  bent 
and  warped,  so  that  his  skin  was  like  a  cracked  parchment, 
his  stature  bent  and  he  walked  with  difficulty  and  tardiness." 

68  "  Biographical  Encyclopedia  of  Maine,  ipth  Century,"  209,  which 
describes  Brown's  connections  with  these  various  corporations. 

69  So  much   for  Justice  Clifford's  connections.    Of   Clifford's  exag- 
gerated  self-esteem   and  formalism  the   following  anecdote  was   later 
current  in  the  public  press  when  he  was  on  the  Supreme  Court  Bench : 
"  Dignified  old  Clifford  always  avoided,  if  possible,  the  use  of  the  defi- 
nite article.    He  would  write  in  his  opinion,  '  Suit  brought  So-and-so,' 
'  Case  involved  So-and-so,'  never  writing  '  the '  if  it  could  be  avoided. 
Jocular  Justice  Grier,  who  had  been  on  the  bench  long  before  Justice 
Clifford  came  to  Washington,  and  who  was  the  only  man  who  dared 
take  liberties  with  his  Maine  brother,  said  one  day,  slapping  Clifford 
on  the  back,  '  Cliffy,  old  boy,  why  do  you  hate  the  definite  article  so?' 
Clifford  drew  himself  up  stiffly  and  replied,  '  Brother  Grier,  you  may 
criticize  my  law,  but  my  style  is  my  own.' " 

70  Justice  Campbell,  however,  had  resigned  in   1861,  to  take  up  the 
cause  of  the  Southern  Confederacy. 


UNDER    CHIEF   JUSTICE   TANEY  481 

According  further  to  Tyler,  Taney  was  poor.  In  an  inter- 
view with  Tyler,  published  after  Taney's  death  in  the  Cin- 
cinnati Commercial  newspaper,  Tyler  was  asked :  "  Was 
Judge  Taney  rich,  Mr.  Tyler  ? "  "  No,  sir,"  replied  Tyler, 
"  always  poor.  He  lived  in  Blagden  row  —  the  row  of  stuc- 
coed houses  opposite  the  City  Hall.  They  are  four-storied; 
an  iron  balcony  runs  above  the  first  story ;  two  windows  adjoin 
the  hall  door.  His  daughters,  at  this  day,  live  upon  copy- 
ing reports  and  papers  from  the  Department  of  the  Interior. 
One  of  them,  I  believe,  is  unmarried ;  another,  a  widow. 
They  are  in  as  nearly  a  state  of  indigence  as  I  care  to  classify 
ladies  so  tenderly  reared.  The  Judge  himself  said  to  me, 
during  the  war,  that  he  lamented  his  narrow  means,  because 
he  wanted  to  take  another  newspaper  and  could  not  af- 
ford it."  71 

These  statements,  and  the  implication  that  they  aimed  to 
convey,  are  obviously  from  an  uncommonly  partial  source. 
But  one  fact  is  certain:  If,  as  Lincoln  and  others  virtually 
charged,  Taney  was  corrupt,  it  was  not  a  corruption  by  me- 
dium of  bribes.  Taney  could  not  be  approached  with  mer- 
cenary inducements.  His  corruption  was  of  a  different  kind. 
A  man  may  accept  bribes,  yet  possibly  refuse  to  accord  his 
vote  and  services.  But  if  a  judge's  class  training,  class  views 
and  class  interests,  with  all  of  the  bias  and  associations  al- 
lied with  them,  be  hard  and  fixed,  he  will  honestly  award, 
as  a  matter  of  indisputable  right,  what  no  amount  of  bribes 
could  influence  him  to  give. 

This  was  the  species  of  Taney's  corruption,  a  sinister  kind 
not  recognized  by  penal  laws,  and  yet,  on  the  whole,  far  ex- 
ceeding in  ominous  efficacy  the  more  vulgar  and  less  certain 
mode  of  money  corruption.  We  have  seen  how  under  the 
administration  of  Taney,  as  Secretary  of  the  Treasury,  and 
under  him  as  Chief  Justice,  land  grabbers  obtained  tens  of 

71  This  interview  was  republished  in  Ellis'  "  Sights  and  Secrets  of  the 
National  Capital"  (1869)  :  p.  267. 


482  HISTORY   OF   THE   SUPREME   COURT 

millions  of  acres  of  the  richest  part  of  the  public  domain,  and 
how  corporations  obtained  immunity  from  taxation.  The  capi- 
talists concerned  became  millionaires  and  multimillionaires,  but 
Taney  died,  on  October  12,  1864,  at  the  age  of  eighty-seven, 
in  a  kind  of  gnawing  genteel  poverty,  unable,  as  we  learn,  to 
afford  an  extra  few  cents  for  an  additional  newspaper.72 

72  Before  Taney's  death  President  Lincoln  had,  made  several  appoint- 
ments as  Associate  Justices  of  the  Supreme  Court.  These  are  dealt 
with  in  the  next  chapter. 


CHAPTER  XII 
THE    SUPREME    COURT    UNDER    CHIEF    JUSTICE    CHASE 

Taney's  successor  was  Salmon  P.  Chase,  Secretary  of  the 
Treasury.  It  was  maintained  then,  and  the  statement  has 
been  uniformly  repeated  in  many  memoirs  and  biographical 
works,  that  President  Lincoln's  motive  in  appointing  Chase 
Chief  Justice  of  the  Supreme  Court  was  to  rid  himself  of  a 
too-ambitious  competitive  aspirant  for  the  Presidential  nom- 
ination. In  both  the  years  1856  and  1860  Chase  had  aimed  to 
get  that  nomination;  and  as  a  member  of  Lincoln's  Cabinet 
he  in  nowise  lessened  his  efforts  and  intrigues.  Of  these 
Lincoln  was  well  aware,  contemplating  them  with  vexation 
and  uneasiness.  Some  politicians  of  the  period,  like  Senator 
Henderson,  even  hold,  in  their  memoirs,  that  Chase  gave  no 
real  help  to  Lincoln  during  the  Civil  War,  but  busied  him- 
self, whenever  the  opportunity  presented,  with  seeking  to 
undermine  Lincoln's  chances  for  renomination,  and  with  pro- 
moting his  own. 

Indeed,  in  a  review  of  Chase's  career,  published  shortly  after 
his  death,  in  the  October,  1873,  issue  of  Bench  and  Bar  (a 
periodical  devoted  to  the  legal  profession)  President  Lincoln 
was  quoted  as  saying  to  a  "  distinguished  and  prominent 
statesman  "  who  assured  him  that  if  Chase  were  appointed 
Chief  Justice  he  (Chase)  would  withdraw  from  politics  and 
devote  himself  exclusively  to  judicial  functions,  "  I  will  nom- 
inate him,  because  it  seems  the  public  wish,  but  you  are  mis- 
taken. He  will  be  a  candidate  for  President  every  four  years 
as  long  as  he  lives,  and  never  be  elected." 

For  many  years  Chase  had  been  an  active  and  conspicuous 

483 


484  HISTORY   OF  THE   SUPREME   COURT 

figure  in  national  politics.  He  had  been  a  United  States 
Senator  from  Ohio  from  1849  to  ^56,  and  Governor  of  Ohio 
from  1856  to  1860.  He  was  a  man  of  force  and  of  impressive 
appearance :  in  stature  six  feet  two  inches,  with  a  massive 
head,  massive  brows,  blue-gray  eyes,  wide  nostrils  and  heavy 
lips, —  altogether  a  commanding  appearance.  Did,  however, 
the  personal  motive  wholly  account  for  Chase's  appointment? 
By  no  means.  Two  other  considerations  had  their  weight. 


Forces  Behind  Chase's  Appointment. 

Chase's  views  on  the  question  of  negro  slavery  had  been 
so  insistently  disseminated,  and  were  so  nationally  known, 
that  there  could  be  no  atom  of  doubt  as  to  where  he  stood  on 
that  issue.  As  an  attorney,  he  had  energetically  defended 
fugitive  slaves ;  in  the  United  States  Senate  he  had  'oeen  one 
of  the  most  unyielding,  aggressive  Free  Soil  opponents  of  the 
extension  of  slavery,  and  as  Governor  of  Ohio  hii,  course  was 
a  consistent  agitation.  The  Civil  War  saw  the  anti-slavery 
forces  in  as  thorough  a  control  of  the  Federal  Goverment  ar. 
had  been  the  slave-owning  oligarchy  under  the  former  regime 
Lincoln's  Emancipation  Proclamation  had  been  promulgated. 
Issues  affecting  this  great  revolutionary  transformation  were 
bound  to  come,  and  did  come,  in  some  phase  or  other,  before 
the  Supreme  Court  of  the  United  States  for  final  adjustment ; 
and  Chase,  as  one  of  the  founders  of  the  Republican  Party, 
could  be  depended  upon  in  his  capacity  of  Chief  Justice  U 
interpret  law  in  accordance  with  the  aims  and  demands  of  fte 
triumphant  anti-slavery  forces. 

The  other  reason  underlying  Chase's  appointment  was  of  a 
very  different  nature,  and  one  hitherto  evaded  in  most  works. 
The  Civil  War  and  its  accompanying  laws  and  administrative 
orders,  placed  the  finances  of  the  country  in  the  power  of  the 
private  bankers;  and  while  armies  were  fighting  and  hosts 


UNDER    CHIEF   JUSTICE    CHASE  485 

perishing  on  the  battlefields,  and  at  sea,1  the  bankers  extracted 
colossal  profits.  The  system  devised  gave  banking  corpora- 
tions absolute  control  over  the  volume  of  currency,  enabling 
them  in  large  measure  to  fix  the  price  of  labor  and  commodi- 
ties of  the  whole  nation.  Enormous  quantities  of  bonds  were 
issued  by  the  Government;  to  pay  interest  to  the  bankers  and 
other  bondholders,  the  people  of  the  United  States  were  taxed 
from  $18,000,000  to  $20,000,000  a  year.  During  the  most  cru- 
cial period  of  the  Civil  War  the  bankers  had  laws  passed  by 
which  they  could  deposit  their  bonds  in  the  United  States 
Treasury,  and  upon  them  issue  their  privately-stamped  cur- 
rency up  to  ninety  per  cent,  of  the  amount  of  the  bonds. 
This  currency  they  used  in  making  loans,  charging  thereon 
varying  rates  of  interest,  often  higher  than  twenty  per  cent. 
Hence  the  bankers  received  two  concurrent  sets  of  interest  — 
frequently  as  much  as  six  per  cent,  in  gold  in  annual  interest 
from  the  Government  on  their  deposited  bonds,  and  a  much 
larger  interest  from  borrowers  for  the  use  of  the  currency 
that  they  were  thus  allowed  to  issue  on  the  strength  of  the 
bonds.2  The  accruing  profits  obviously  were  very  great,  often 
averaging  twenty,  fifty,  and  at  times  one  hundred  per  cent.,  in 
the  course  of  a  year. 

The  system  of  funding  the  public  debt  was,  like  the  national 
banks,  borrowed  from  the  English  monarchy.  Under  this  sys- 
tem, a  gigantic,  non-taxable,  interest-bearing  debt  was  perpet- 
uated. The  banks  we're  enriched  by  the  bonds ;  therefore,  the 
bankers  saw  to  it  that  the  public  debt  was  continued  and  in- 
creased, and  a  perpetual  bonded  debt  assured.  Every  attempt 

1  Of  the  Union  soldiers,  67,000  were  slain  in  battle,  43,000  died  of 
wounds,  and  230,000  perished  of  diseases  and  other  causes.     Of  the 
number  of  indirect  deaths  produced  in  families  by  the  absence  of  ade- 
quate support  arising  from  breadwinners  enlisting  in  the  war,  no  ascer- 
tainment, of  course,  is  possible. 

2  From  1863  to  1878,  the  Government  paid  out  to  National  banks  the 
enormous  sum  of  $252,837,556.77  as  interest  on  bonds. —  House  Execu- 
tive Document  No.  34,  1879. 


486  HISTORY   OF   THE    SUPREME   COURT 

to  scale  down  this  debt  and  pay  the  bonds  according  to  con- 
tract, was  frustrated  by  the  bankers. 

This  system  caused  great  public  agitation,  resulting  later  in 
the  Greenback  political  movement.  One  phase  of  the  finan- 
cial system,  however,  ranged  the  railroad  interests  in  opposi- 
tion to  the  bankers;  the  developing  conflict  between  these  two 
powers,  had  as  we  shall  see,  a  striking  influence  upon  the 
Supreme  Court. 


The  Banking  Power's  Sway. 

In  1 86 1  Congress  passed  an  act  providing  for  the  issuance 
of  $50,000,000  in  Treasury  notes.  Thereupon  the  banks, 
which  had  been  actively  engaged  in  hoarding  gold,  suspended 
specie  payments  on  December  30  of  that  year.  This  action 
they  took  in  order  to  avoid  paying  gold  for  Treasury  notes. 
In  the  next  year —  1862  —  Congress  passed  the  Legal  Tender 
Act,  authorizing  the  issuance  of  $150,000,000  of  greenbacks 
(so  called  from  their  color),  and  retiring  the  $50,000,000  pro- 
vided by  the  act  of  the  previous  year. 

But  before  this  bill  was  finally  passed  the  bankers  industri- 
ously lobbied  in  Congress,  with  the  result  that  the  bill  was 
altered  and  mutilated.  In  its  amended  form  it  provided  that 
legal-tender  notes  should  not  be  receivable  for  "  interest  on 
bonds  or  notes,  which  shall  be  paid  in  coin."  This  meant 
gold ;  and  as  the  bankers  monopolized  the  available  supply  of 
gold,  Government  had  to  borrow  it  from  them  at  excessive 
premiums.  No  sooner  did  the  Government  borrow  the  gold 
than  back  it  flowed  to  the  bankers  in  interest  on  bonds  —  an 
endless-chain  process  incessantly  enriching  the  bankers,  and 
this  while  hundreds  of  thousands  of  soldiers  were  pouring 
out  their  blood  and  wasting  health  and  yielding  life. 

This  mutilation  of  the  original  Legal  Tender  Act  for  the 
exclusive  benefit  of  the  bankers  moved  Representative  Thad- 
deus  Stevens,  in  the  debate  on  February  20,  1862,  to  make 


UNDER    CHIEF   JUSTICE    CHASE  487 

a  bitter  denunciation.  ".  .  .  With  my  colleague,"  he  said, 
referring  to  the  first  draft  of  the  bill,  "  I  believe  that  no  act 
of  legislation  of  this  Government  was  ever  hailed  with  as 
much  delight  throughout  the  whole  length  and  breadth  of  the 
Union  by  every  class  of  people  without  exception,  as  the  bill 
we  passed  and  sent  to  the  Senate.  ...  It  is  true  there 
was  a  doleful  sound  come  up  from  the  caverns  of  bullion 
brokers  and  from  the  saloons  of  the  associated  banks.  .  .  . 
They  fell  upon  the  bill  in  hot  haste  and  so  disfigured  and 
deformed  it  that  its  father  would  not  know  it.  ...  It  is 
now  positively  mischievous  ...  it  makes  two  classes  of 
money  .  .  .  one  for  the  banks  and  brokers,  and  another 
for  the  people.  .  .  ." 3  "  We  did  not  yield,"  he  said  later, 
"  until  we  found  that  the  country  must  be  lost  or  the  banks 
be  gratified,  and  we  have  sought  to  save  the  country  in  spite 
of  the  cupidity  of  the  wealthy  citizens."  So  rapacious  was 
the  hold-up  of  the  nation  by  the  bankers  at  a  critical  time 
when  every  particle  of  energy  and  every  available  resource 
were  essential  to  carry  on  the  war,  that  even  John  Sherman 
denounced  the  bill.  Sherman,  as  his  course  as  Secretary  of 
the  Treasury  later  proved,  was  a  pliant  instrument  of  the 
bankers,  but  he  was  an  extensive  railroad  stockholder,  and  at 
this  time  the  banking  and  the  railroad  interests  were  aligning 
in  opposition. 

Control  Finances  During  the  Civil  War. 

The  act  of  1862  merely  said  that  the  interest  on  the  author- 
ized bonds  was  to  be  paid  in  coin,  but  no  explicit  statement 
was  made  in  the  bonds  as  to  what  form  of  money  the  principal 
should  be  paid  with.  According  to  the  law,  greenbacks  were 
a  "  lawful  money  and  a  legal  tender  for  all  debts,  public  and 
private  within  the  United  States  except  duties  on  imports  and 

3  The  Congressional  Globe,  Part  I,  Second  Session,  Thirty-seventh 
Congress,  1861-62:  900. 


HISTORY  OF   THE   SUPREME   COURT 

interest  on  aforesaid."  A  rational  construction  of  the  law 
would  have  dictated  the  payment  of  the  principal  in  green- 
backs. The  soldiers  and  sailors  of  the  nation  were  being  paid 
in  that  paper.  But  the  bankers  wanted  no  greenbacks ;  they 
demanded  gold.  They  had  expressly  lobbied  in  Congress  to 
outlaw  greenbacks  so  far  as  payment  of  customs  dues  was  con- 
cerned, knowing  that  such  a  provision  would  depreciate  their 
value.  Having  accomplished  this  depreciation,  they  then 
threatened  that  unless  the  principal  were  paid  in  gold  no 
Government  bonds  would  be  marketed.  Accordingly,  on 
March  3,  1863,  Congress  compliantly  passed  an  act  providing 
that  both  interest  and  principal  should  be  payable  in  coin, 
which,  of  course,  signified  gold.4 

Two  forms  of  United  States  notes,  or  currency,  were  issued. 
One  kind  bore  interest;  of  these  $577,000,000  were  issued  by 
1866.  The  other  varieties  called  greenbacks,  demand  notes 
and  national  bank  notes,  bore  no  interest.  In  1864,  $449,000,- 
ooo  of  greenbacks  were  in  circulation.  Forming  what  was 
considered  the  better  class  of  currency,  the  interest-bearing 
Treasury  notes  were  closely  hoarded  by  the  banks  which,  in 
return,  issued  their  own  depreciated  bank  notes  and  forced 
them  into  general  circulation.  By  the  year  1865  more  than 
$700,000,000  State  and  National  bank  notes  were  in  circula- 
tion. ..."  Immense  interests,"  said  Hugh  McCulloch, 
Comptroller  of  the  Currency,  in  his  second  report,  "  have  been 
at  work  all  over,  and  concentrated  in  New  York  to  raise  the 
price  of  coin,  and  splendid  fortunes  have  been  apparently 
made  by  their  success.  .  .  .  Gold  has  been  a  favorite  arti- 
cle to  gamble  in.  ...  The  effect  of  all  of  this  has  been, 
not  to  break  down  the  credit  of  the  Government,  but  to  in- 
crease enormously  the  cost  of  the  war  and  the  expense  of 
living  .  .  ." 

4  See,  Belles'  "  Financial  History  of  the  United  States,"  pp.  79,  80, 
139,  etc.;  Stunner's  "History  of  American  Currency;"  Dunbar's 
"  Laws  of  the  United  States  Relating  To  Currency  and  Finance  From 
1789  to  1890,"  etc 


UNDER    CHIEF   JUSTICE    CHASE  489 

"  Mr.  Chase,"  says  a  commentator  describing  his  activities 
while  Secretary  of  the  Treasury,  "  not  a  banker  by  profession, 
and  without  much  experience  in  financing,  had  yet  proved  him- 
self obstinated  and  unwilling  to  learn.  Whatever  were  his 
intentions  —  and  it  must  be  allowed  that  they  were  probably 
good  and  his  difficulties  great  —  he  had,  yet  without  consenting 
to  .what  the  bankers  desired  on  many  points,  actually  played 
into  their  hands.  Men  said  his  ambition  to  be  President  had 
been  his  weakness.  ."  5 


Chase  as  Bank  Attorney  and  Director. 

That  Chase  was  subservient  to  the  banking  interests  was  a 
fact ;  but  the  statement  that  he  had  had  no  experience  in  bank- 
ing affairs  reveals  complete  ignorance  of  his  career.  His  ap- 
pointment as  Secretary  of  the  Treasury  had,  Tin  fact,  been 
seconded  by  the  powerful  bankers,  knowing  that  as  a  bank 
director  and  bank  lawyer,  he  would  well  represent  them,  and 
conserve  their  particular  interests  at  almost  every  point. 

When  a  lawyer  in  private  practice,  Chase's  specialty  had 
been,  for  many  years,  the  advocacy  of  the  interests  of  certain 
banks;  and  during  a  part  of  that  time  he  had  been  a  bank 
director.  Soon  after  removing  to  Cincinnati  he  had  formed, 
in  1832,  a  partnership  with  D.  A.  Caswell.  For  the  payment 
of  a  large  bonus,  Caswell  agreed  that  Chase  was  to  share 
equally  in  all  business,  including  that  of  the  agency  of  the 
Bank  of  the  United  States,  for  which  institution  Caswell  was 
attorney.0  Thereafter,  for  many  years,  Chase  appeared  in  the 
courts  as  the  attorney  for  the  Bank  of  the  United  States.7 

Of  the  corrupt  career  of  this  institution,  we  have  given 
a  tolerably  clear  outline  in  previous  chapters ;  how  $76,000,000 

5  See,  Article  on  Currency,  Encyclopedia  of  Social  Reform,  Edition 
of  1897 :  443. 

0  Van  Santvoord,  pp.  663-664. 

7  See,  Case  of  Bank  of  U.  S.  vs.  Dunseth,  X  Ohio  Reports,  21 .  and 
Ibid.,  61,  etc.,  etc, 


490  HISTORY   OF   THE    SUPREME   COURT 

of  its.  assets  had  vanished  by  the  y.ear  1841 ;  how  it  had 
"  loaned  "  $30,000,000  to  various  members  of  Congress,  edi- 
tors of  newspapers,  to  politicians  in  general,  to  brokers  and 
jobbers  and  to  favorites.  A  large  part  of  these  $30,000,000 
had  been  corruptly  expended  in  the  long  effort  to  get  a 
recharter  from  Congress  and  to  subsidize  the  newspaper  press. 
We  have  also  related  how  the  officials  of  the  Bank  of  the 
United  States  plundered  it  of  large  sums:  Nicholas  Biddle, 
its  president,  had  paid  out  $1,018,000  for  which  no  vouchers 
could  be  found;  John  Andrews,  its  cashier,  embezzled  $426,- 
930.67  of  its  funds,  and  Joseph  Cowperthwaite,  its  second 
assistant  cashier,  defaulted  in  the  sum  of  $55,081. 95.8 

Corrupt  Methods  of  the  Bank  of  the  United  States. 

As  an  illustration  of  the  methods  of  the  Bank  of  the  United 
States  in  clandestinely  securing  legislation,  the  following  in- 
cident, as  related  by  Benton,  and  confirmed  by  the  official- 
records,  showed  how  it  bribed  a  charter  through  the  Pennsyl- 
vania Legislature,  after  President  Jackson  had  vetoed  its  re- 
charter  obtained  by  corrupt  means  from  Congress. 

"  On  the  I9th  day  of  January,  in  the  year  1836,"  Benton 
relates,  "a  bill  was  reported  in  the  House  of  Representatives 
of  the  General  Assembly  of  Pennsylvania,  entitled,  '  An  act  to 
repeal  the  State  tax,  and  to  continue  the  improvement  of  the 
State  by  railroads  and  canals;  and  for  other  purposes.'  It 
came  from  the  standing  committee  on  '  Inland  navigation  and 

8  After  Biddle's  retirement  from  the  presidency  of  the  Bank  of  the 
United  States,  that  institution  brought  a  civil  action  against  him  and 
Andrews  for  the  restitution  of  more  than  $400,000  that  they  were 
charged  with  stealing  from  the  bank  in  1836.  The  theft,  so  it  was 
charged,  was  concealed  by  fraudulent  entries,  burning  of  vouchers  and 
by  other  methods.  By  the  time  the  suit  came  up,  in  1844,  Biddle  had 
died,  but  the  action  was  pressed  against  Andrews.  His  answer  was  a 
general  denial,  but  Judge  Parsons  decided  that  he  was  convinced  that 
the  claim  for  recovery  was  one  which  could  be  enforced,  and  he  over- 
ruled Andrews'  demurrer. —  See,  Parsons'  Select  Equity  Cases  of  the 
First  Judicial  District  of  Pennsylvania,  1844,  II :  31-63.  Also,  Pa, 
House  Journal,  1842,  Vol.  II :  Appendix,  182. 


UNDER    CHIEF   JUSTICE    CHASE  491 

internal  improvement';  and  was,  in  fact,  a  bill  to  repeal  a  tax 
and  make  roads  and  canals,  but  which,  under  the  vague  and 
usually  unimportant  generality  of  '  other  purposes  '  contained 
the  entire  draught  of  a  charter  for  the  Bank  of  the  United 
States  —  adopting  it  as  a  Pennsylvania  State  Bank. 

"  The  introduction  of  this  bill,  with  this  addendum,  was  a 
surprise  upon  the  House.  No  petition  had  asked  for  such  a 
bank;  no  motion  had  been  made  in  relation  to  it;  no  inquiry 
had  been  sent  to  any  committee ;  no  notice  of  any  kind  heralded 
its  approach ;  .  .  .  the  unimportant  clause  of  '  other  pur- 
poses '  hung  on  at  the  end  of  the  title,  could  excite  no  suspicion 
of  the  enormous  measures  which  lurked  under  its  unpreten- 
tious phraseology.  .  .  .  Some  members  looked  at  each 
other  in  amazement.  But  it  was  soon  evident  that  it  was  the 
minority  only  that  was  mystified  —  that  a  majority  of  the 
elected  members  in  the  House,  and  a  cluster  of  exotics  in  the 
lobbies,  perfectly  understood  the  instrusive  moment ;  in  brief, 
it  had  been  smuggled  into  the  House,  and  a  power  was  present 
to  protect  it  there  .  .  ."  9 

Charges  of  bribery  forced  the  Pennsylvania  Legislature  to 
make  a  show  of  investigation.  The  Senate  appointed  an  in- 
vestigating committee  which  proceeded  to  swear  witnesses  by 
the  usual  oath,  "  You  do  solemnly  swear  by  the  Holy  Evan- 
gelists of  Almighty  God/'  etc.,  etc.  Bribery  was  freely  ad- 
mitted. Colonel  Jacob  Krebs,  a  Senator,  testified,  for  example, 
that  on  February  10,  1836,  he  had  been  offered  $4,000  or 
$5,000  by  James  L.  Dunn,  for  his  favorable  vote,  and  that  he 
was  at  another  time  offered  $20,000  by  Henry  W.  Conrad, 
the  money  for  his  vote  to  be  paid  two  weeks  after  the  bill 
became  a  law. 

The  Senate  Committee  handed  in  a  whitewashing  report.10 
But  a  Pennsylvania  House  investigating  committee,  appointed 
in  1840,  with  power  to  go  back  a  number  of  years,  reported 

9  "  Thirty  Years  in  the  Senate,"  Vol.  II :  23-24. 
10  Pa.  Senate  Journal,  1835-1836,  Vol.  1 :  305-306. 


492  HISTORY   OF   THE    SUPREME   COURT 

that  the  sum  of  $130,000  had  been  expended  in  bribes  by  the 
Bank  of  the  United  States.  "  It  is  hard  to  come  to  the  con- 
clusion," the  committee  commented,  "  that  men  of  refined 
education,  and  high  and  honorable  character,  would  wink  at 
such  things,  yet  the  conclusion  is  unavoidable."  As  to  whom 
the  $130,000  was  paid,  the  committee  professed  to  be  utterly 
in  the  dark ;  "  there  was  no  evidence  that  money  was  paid  to 
anybody."  " 

Chase's  Appearance  for  Banks. 

This  was  the  bank  for  which  Chase  was  Cincinnati  coun- 
sel during  this  identical  period;  the  methods  of  the  United 
States  Bank  in  Ohio  did  not  differ  from  those  it  used  at 
Washington  and  in  Pennsylvania.  Its  corruption  was  estab- 
lished, yet  Chase  displayed  no  scruples  at  continuing  to  draw 
his  fees,  and  in  doing  its  law  work. 

At  the  same  time  he  was  one  of  the  first  directors  of  the 
Lafayette  Bank  of  Cincinnati,  established  in  1834.  For  ten 
years  he  remained  on  the  board  of  directors  of  the  Lafayette 
Bank,  also  acting  as  secretary  of  the  board,  and  serving  as 
attorney  for  the  bank.  Among  his  many  appearances  as 
attorney  for  the  Lafayette  Bank  was  that  in  the  action,  in 
1841,  of  the  State  of  Ohio  against  the  Lafayette  Bank,  the 
Commercial  Bank,  and  the  Franklin  Bank  of  Cincinnati. 
This  was  an  action  by  the  State  for  the  forfeiture  of  the 
charters  of  those  banks  for  illegally  issuing  large  sums  of 
notes  to  circulate  as  money ;  for  receiving  a  greater  rate  of 
interest  than  six  per  cent,  per  annum ;  for  suspending  payment 
of  notes  payable  in  coin;  for  expanding  their  circulation  to 
an  amount  greater  than  four  times  the  amount  of  coin  in 
their  vaults,  and  then  suddenly  withdrawing  a  great  part  of 
those  notes  from  circulation.12 

11  Pa.  House  Journal,  1842,  Vol.  II :  Appendix,  172-531. 

12  X  Ohio  Reports,  543.     Judge  Lane  decided  in  favor  of  the  banks 
upon  the  ground  that  specific  legislation  necessary  to  bring  about  the 
forfeiture  of  their  charter  had  not  been  enacted. 


UNDER   CHIEF  JUSTICE   CHASE  493 

Thus,  considering  his  long  service  as  a  bank  director  and 
attorney,  Chase  was  by  no  means  as  unsophisticated  regard- 
ing financial  matters  and  practices  of  the  banking  world  as 
some  of  his  ill-informed  critics  would  have  it.  His  lucrative 
practice  was  almost  wholly  one  of  a  bank  attorney,  but  when 
any  case  involved  the  defense  of  a  fugitive  slave  he  would 
gladly  tender  gratuitous  service.  His  fortune,  in  1861,  was 
estimated  at  $65,000;  his  intimate  friend  and  biographer, 
Schuckers,  says  that  just  before  the  Civil  War,  Joshua  Hanna 
invested  $5,000  for  Chase  in  stock  of  the  Cleveland  and  Pitts- 
burg  Railroad,  and  that  Chase  reaped  $5,000  profit  by  selling 

the  stock  when  its  market  value  went  up.13 

i 

Favors  the  Bankers  When  Secretary  of  the  Treasury. 

It  was  Chase  who,  as  Secretary  of  the  Treasury,  proposed 
and  urged  the  establishment  of  the  national  banking  system. 
And  it  was  under  this  system,  so  extraordinarily  favorable 
to  the  bankers  that,  as  we  have  explained,  the  bankers  were 
allowed  to  fasten  their  iron  hold  on  the  National  Treasury, 
and  drain  it  for  their  own  aggrandizement.  Immense  private 
fortunes  were  soon  acquired  by  these  means,  which  fortunes 
grew  still  greater  by  the  further  methods  used  by  the  bankers 
in  forcing  the  Government  to  award  them  bond  issues  on  their 
own  terms.  When  Secretary  Chase  tried  to  place  a  large 
issue  of  five-per-cent.  bonds  authorized  by  Congress,  the  banks 
held  off  from  taking  them  up.  Their  object  was  soon  seen. 
Using  their  refusal  as  an  argument,  Chase  induced  Congress 
to  authorize  more  legal-tender  notes  until  that  currency  was 
depreciated  to  a  low  point.  The  bankers  then  hurried  for- 
ward to  get  hold  of  this  depreciated  currency,  and  Chase  al- 
lowed them  to  tender  it,  at  its  face  value,  for  Government 
bonds.  Was  Chase  the  accomplice  or  dupe  of  the  banking 
interests?  Whether  he  was  the  one  or  the  other,  the  result 

""Life  of  S.  P.  Chase"  (1874) :  p.  617. 


494  HISTORY  OF  THE   SUPREME   COURT 

was  the  same.  Deliberately  or  supinely  he  played  into  the 
hands  of  the  bankers,  permitting  them  to  buy  up  the  bonds 
with  a  depreciated  currency. 

The  Greenback  Party,  originating  largely  in  this  manipula- 
tion of  the  currency  in  favor  of  the  bankers  and  bondholding 
class,  took  the  view  that  this  condition  was  the  result  of  a 
definite  conspiracy.  It  charged  that  the  bankers,  national  and 
international,  had  conspired  to  make  the  issue  of  the  war 
greenbacks  a  failure  by  inducing  Congress  to  prevent  their 
being  legal  tender  for  customs  duties  and  for  payment  of  the 
national  debt,  and  thus  depreciating  their  value.  It  declared 
that  there  had  been  a  conspiracy  to  cause  needless  bonds  to 
be  issued  and  to  buy  up  those  greenbacks  at  their  depreciated 
value,  purchasing  the  bonds  with  them,  and  paying  for  the 
bonds  with  greenbacks  accepted  at  their  face  value.  It  set 
forth  that  while  these  bonds  had  been  bought  with  green- 
backs at  thirty  cents  on  the  dollar,  yet  Congress  had  been 
influenced,  under  the  pretense  of  "  national  faith  "  and  "  an 
honest  dollar "  to  declare  those  bonds  redeemable  in  gold. 
The  banker  was  allowed  to  get  his  gold  while,  so  the  Green- 
back Party  complained,  the  soldiers  and  sailors  of  the  war 
who  had  risked  their  lives,  "  and  got  no  interest "  had  been 
paid  in  greenbacks.14 

Corruption  of  Congress. 

Much  as  Secretary  Chase  was  denounced  at  the  time,  the 
full  odium  for  these  transactions  could  not  justly  be  imputed 
to  him.  A  large  share  of  the  responsibility  fell  upon  the 
majority  of  Congress  which  had  passed  the  successive  laws 

14  The  demand  that  bonds  which  did  not  distinctly  call  for  payment 
in  coin  should  be  paid  in  greenbacks  was  called  the  "  Ohio  idea."  and 
was  agitated  as  early  as  1868.  In  the  election  of  1874,  Peter  Cooper, 
as  the  Presidential  nominee  of  the  Greenback  Party,  polled  81,737 
popular  votes.  Subsequently  the  Greenback-Labor  Party  polled  more 
than  a  million  votes.  It  was  the  predecessor  of  the  Populist  Party. 


UNDER   CHIEF   JUSTICE   CHASE  495 

construed  so  favorably  to  the  banking  interests  by  Chase. 
The  particular  arguments  influencing  that  majority  in  the 
passage  of  various  acts  may  be  judged  from  the  fact  that  at 
the  very  time  when  the  murderous  battles  of  the  Wilderness 
were  being  fought,  the  promoters  of  the  Union  Pacific  Rail- 
road expended  nearly  $436,000  in  bribes  for  the  enact- 
ment of  the  act  of  July  2,  1864,  giving  that  company  Govern- 
ment subsidies  amounting  to  from  $16,000  to  $48,000  a  mile, 
according  to  the  topography  of  the  country,  and  making  the 
company  a  present  of  about  12,000,000  acres  of  public  domain, 
and  so  altering  the  original  act  that  the  Government  had  little 
opportunity  of  getting  back  its  outlays.15 

Banks  Seek  a  Monopoly  of  Issuing  Currency. 

After  the  banks  had  manipulated  the  greenback  issues  to 
suit  their  own  purposes,  and  had  glutted  themselves  with 
Government  bonds  largely  bought  with  depreciated  greenbacks 
at  their  face  value,  they  aimed  to  get  rid  of  Government-issued 
currency.  By  October  9,  1869,  the  1,617  national  banks  in 
the  United  States  held  about  $339,000,000  of  Government 
bonds  on  which  they  circulated  their  bank  notes.  Of  legal 
tender  notes  they  held  about  $129,000,000.  But  their  hold- 
ings of  specie  amounted  to  some  $23,000,000;  as  a  matter  of 
fact  only  $15,000,000  in  gold  was  in  that  year  in  actual  circu- 
lation in  the  United  States.  The  bankers  and  speculators 
monopolized  and  controlled  the  gold  supply. 

This  being  so,  they  now  planned  to  have  the  legal-tender 
issues  outlawed  so  far  as  they  applied  to  payments  on  con- 
tracts. The  bankers  were  the  creditor  class;  and  if  the  courts 
were  to  decide  that  promises  to  pay  on  contracts  were  not 

15  Reports  of  Committees,  Credit  Mobilier  Reports,  Forty-second 
Congress,  Third  Session,  1872-73,  Doc.  No.  78:  xviii.  The  "Wilson" 
investigating  committee  of  the  Senate  reported  that  the  evidence  proved 
that  nearly  $436,000  had  been  disbursed  in  connection  with  the  passage 
of  the  amendatory  act  of  July  2,  1864. 


496  HISTORY  OF  THE   SUPREME   COURT 

payable  in  legal-tender  currency,  then  the  payments  would 
have  to  be  made  in  gold.  Inasmuch  as  the  banks  held  a  mo- 
nopoly of  the  available  gold  supply,  the  debtor  class  would 
have  to  get  the  gold  from  the  banks  at  the  bankers'  own 
terms. 

But  another  question  was  involved.  The  banks  sought  a 
complete  monopoly  of  the  traffic  of  issuing  currency.  They 
desired  no  competition  in  that  line  from  the  Government. 
The  one  form  of  currency  represented  private  ownership  and 
control  of  that  essential  medium  of  exchange ;  the  other  pub- 
lic ownership  and  control.  The  banks  planned  to  efface  the 
Government  from  the  money-issuing  function.  But  how? 
By  having  the  courts  declare  the  Legal  Tender  Act  unconstitu- 
tional. True,  various  State  courts,  with  the  single  exception 
of  the  Supreme  Court  of  Pennsylvania,  had  decided  in  favor 
of  the  law,  but  the  Supreme  Court  of  the  United  States  was 
still  to  speak,  and  it  was  upon  that  Court  that  the  banking 
interests  now  confidently  depended. 

Banking  and   Railroad   Interests   Collide. 

It  was  precisely  at  this  juncture  that  the  banking  power 
came  into  ,the  sharpest  collision  with  the  rapidly  expanding 
railroad  interests. 

The  preceding  decades  had  been  a  period  of  phenomenal 
construction  of  railroads.  In  the  year  1851,  there  were  less 
than  9,000  miles  of  railroad  in  the  entire  United  States.  In 
the  next  six  years  17,000  miles  were  built.  By  the  beginning 
of  the  Civil  War,  a  total  of  30,000  miles  of  railroad  had  been 
constructed.  During  the  next  decade  —  at  least,  before  1873 
—  36,000  more  miles  of  railroad  were  built,  constituting  a 
greater  extension  than  the  entire  mileage  of  the  preceding 
thirty-four  years.10 

Although,  as  we  shall  see,  the  promoters  of  those  railroads 

16  See,  "  Poor's  Railroad  Manual,"  for  the  years  in  question. 


UNDER    CHIEF   JUSTICE    CHASE  497 

had  bribed  act  after  act  through  Congress  or  State  Legisla- 
tures or  both,  and  had  corrupted  county  officials  and  munici- 
palities to  give  them  stupendous  gifts  of  public  lands,  public 
funds  and  extraordinary  privileges,  yet  the  construction  ne- 
cessities of  actual  cash  were  so  great  that  necessarily  the 
railroad  corporations  had  to  make  out  mortgages.  As  we 
have  said,  very  little  gold  was  in  circulation.  The  receipts 
of  the  railroad  companies  were  almost  wholly  in  legal-tender 
notes.  If  they  were  required  to  pay  their  fixed  charges  or 
contracts  in  gold,  they  would  be  so  completely  at  the  mercy  of 
the  banks  that  it  would  only  be  a  short  time  before  the  banks 
would  own  outright  virtually  every  railroad  system. 

This  was  the  prodigious  contest  now  under  way  between 
these  two  powerful  interests.  Which  side  would  win?  The 
Supreme  Court  of  the  United  States  would  decide. 


Supreme  Court's  Composition. 

The  composition  of  the  Supreme  Court  of  the  United 
States  at  this  time  was  mixed,  in  point  of  the  economic  inter- 
ests represented  by  its  members.  President  Lincoln  had  ap- 
pointed four  Associate  Justices  —  Noah  H.  Swayne,  of  Ohio, 
Samuel  F.  Miller,  of  Iowa,  and  David  Davis,  of  Illinois,  in 
1862,  and  Stephen  J.  Field,  of  California,  in  1863. 

As  an  attorney,  Swayne  had  represented  various  miscel- 
laneous corporations  —  the  Columbus  Insurance  Company, 
the  Bank  of  Wooster,  the  Columbus  Machine  Manufacturing 
Company,  the  Ohio  Mutual  Insurance  Company,  the  Delaware 
County  Bank,  the  Bank  of  Circleville  and  other  companies 
and  institutions.17  He  had  been  an  attorney  for  the  Lafayette 
Bank,  of  Cincinnati,18  of  which  bank,  as  .we  have  related, 
Chase  had  long  been  a  director. 

"XVII  Ohio  Reports,  224,  etc.;  I  Ohio  State  Reports,  234;  XI  Ibid., 
163;  XII  Ibid.,  178,  etc.,  etc. 
18  VIII  Ohio  State  Reports,  28. 


49^  HISTORY   OF   THE    SUPREME   COURT 

When  an  attorney  for  the  Mad  River  and  Lake  Erie  Rail- 
road, Swayne  had  contested  an  action  attracting  some  adverse 
notice  in  the  year  1856.  Barber,  a  freight  train  conductor, 
had  brought  an  action  for  severe  injuries  sustained  while  at 
work,  in  1852.  The  cars  were  defective,  not  being  supplied 
with  brake  rods,  chains  and  other  apparatus ;  and  while  en- 
gaged in  his  duties,  Barber  was  thrown  under  the  cars  which 
passed  over  him  breaking  one  of  his  legs  and  crushing  his 
right  arm.  Thereafter,  he  was  disfigured  and  maimed  for 
life,  and  unable  to  make  a  living.  The  jury  in  the  lower 
court  gave  him  a  verdict  for  $9,500  damages. 

Swayne  and  W.  F.  Stone,  as  attorneys  for  the  railroad, 
carried  the  case  on  appeal  to  the  Ohio  State  Supreme  Court. 
In  December,  1861,  Chief  Justice  Bartley  of  that  court  re- 
versed the  judgment  of  the  district  court  on  the  ground 
(among  other  grounds  mentioned)  that  a  railroad  company 
was  not  liable  in  an  action  for  damages  in  consequence  of 
defective  cars  where  (so  the  decision  literally  read)  the  de- 
fects of  the  cars  were  unknozvn  to  both  parties,  and  where 
neither  party  was  at  fault.  Barber  —  the  decision  further 
read  —  had  voluntarily  assumed  the  risk ;  he  had  had  a  right 
to  decline  his  job  or  refuse  to  run  the  train ;  and  when  he 
voluntarily  took  the  job,  he  assumed  the  risk.19  Thus,  after 
nearly  ten  years'  futile  attempts  to  get  redress,  the  mutilated 
brakeman  was  condemned  to  live  out  his  wretched  life  in 
penniless  misery,  while  Swayne  ascended  to  the  Supreme 
Court  of  the  United  States. 

Associate  Justice  Miller  subsequently  developed  more  than 
pronounced  railroad  leanings,  as  was  shown  in  a  noted  cynical 
decision  of  his ;  but  what  especially  commended  him  at  this 
time  was  that  he  had  strongly  favored  the  emancipation  of 
negro  slaves. 

Davis  was  a  personal   friend  of  Lincoln ;  after  Lincoln's 

19  See,  Case  of  Mad  River  and  Lake  Erie  R.  R.  vs.  Barber,  V  Ohio 
State  Reports,  541-568. 


'JNDER    CHIEF   JUSTICE    CHASE  499 

assasn'natio'i,  hf.  was  one  of  the  administrators  of  Lincoln's 
estate.  Davi.s  had  married  Sarah  Walker  of  Pittsfield,  Massa- 
chusetts, who  had  a  considerable  fortune.  For  an  adroit  pol- 
itician Davij  v^as  unusually  conscientious  and  progressive  ;  he 
had  been  a  judge  in  Illinois  from  1848  to  1862,  and  there  was 
highly  spoken  of  and  respected.20  Miller  was  forty-six  years 
old,  Davis,  forty-seven,  at  the  time  of  their  appointment. 

Justice  Field's  Career. 

The  career  of  Associate  Justice  Field  was  filled  with 
scandals  both  before  and  after  his  elevation  to  the  Supreme 
Court.  Born  at  Haddam,  Connecticut,  in  1816,  he  was  the 
son  of  a  Congregationalist  clergyman.  He  had  studied  law 
in  the  office  of  his  brother,  David  Dudley  Field,  and  was  his 
partner  from  1841  to  1848. 

David  Dudley  Field  had  married  a  rich  widow  ;  "  hence," 
says  a  contemporary  account,  "  a  portion  of  his  wealth,"  which 
amounted  to  $ioo,ooo.21  David  Dudley  Field  became  one  of 
the  attorneys  for  the  notorious  briber,  Jacob  Sharp,  after 
Sharp  had  bribed  the  New  York  Board  of  Aldermen,  in  1853, 
to  grant  him  a  street  railway  franchise  for  Broadway.22 


jd  f,e  ever  forfeit  this  respect.  So  esteemed  was  he  for  his 
progressive  views  that,  in  February,  1872,  the  National  Convention  of 
the  Labor  Reform  Party  nominated  him  as  its  candidate  on  a  platform 
which  declared,  among  other  things,  in  favor  of  a  national  currency, 
"  based  on  the  faith  and  resources  of  the  nation  "  ;  which  demanded 
the  establishment  of  an  eight-hour  law  throughout  the  country,  and  the 
payment  of  the  national  debt  "  without  mortgaging  the  property  of  the 
people  to  enrich  capitalists."  Davis  accepted.  At  the  Liberal  Repub- 
lican Party  Convention,  in  1872,  he  received  92%  votes  for  the  nomina- 
tion for  President,  but  determined  to  retire  from  the  final  contest. 
The  convention  nominated  Horace  Greeley. 

21  "  The  Wealth  and  Biography  Of  The  Wealthy  Citizens  of  New 
York,"  1846. 

2-  See,  Case  of  Milhau  vs.  Sharp,  XV  Barbour's  Supreme  Court  Re- 
ports [N.  Y.]  :  193-232.  For  details  of  the  bribery  see  Testimony 
before  the  Grand  Jury,  Documents  of  the  N.  Y.  Board  of  Aldermen. 
XXI,  Part  II,  No.  55  :  1333-1335.  The  courts,  at  the  time,  refused  to 
allow  the  franchise  to  be  carried  into  effect.  But  twenty-one  years 
later  —  in  1884  —  Sharp  was  more  successful.  With  $500,000  in  cash, 


5OO  HISTORY   OF   THE    SUPREME   COURT 

Subsequently,  David  Dudley  Field  was  attorney  £o/  tho  c 
even  more  notorious  bribers  and  railroad  wreckf:tj  aud 
looters,  Jay  Gould  and  James  Fisk,  Jr.23  And  it  may  be  men- 
tioned here  that  (no  doubt  as  a  token  of  pure  brotherly  affec- 
tion) David  Dudley  Field  made,  in  1880,  a  gift  to  Af^ociate 
Justice  Field  of  a  deed  to  a  fine  house  and  grounds  in  Wash- 
ington that  Justice  Field  from  thence  to  his  death  owned  and 
occupied.  The  fact  of  this  gift  Justice  Field  himself  stated 
in  his  will.  Another  brother  of  Associate  Justice  Field  was 
Cyrus  W.  Field,  the  inventor  of  the  submarine  telegraph 
cable.  Cyrus  Field,  after  the  Civil  War,  aligned  himself  with 
Jay  Gould  in  the  manipulation  of  the  elevated  railroads  in 
New  York  City,  in  which  roads  he  was  a  large  stockholder. 
For  a  time,  he  was  a  director  of  the  Manhattan  Railway  and 
also  of  the  New  York  Central  and  Hudson  River  Railroad,24 
but  subsequently  was  stripped  by  Gould  of  his  elevated~~rail- 
road  stock,  and  died  a  comparatively  poor  man.25 

Going  to  California,  Stephen  J.  Field  settled  at  Yubaville, 
of  which  place  he  was  elected  mayor,  in  1850.  He  was,  in- 
deed, mayor  and  judge  in  one,  and  carried  a  six-shooter  both 
to  enforce  his  authority  and  to  protect  himself.  Heralded  as 
a  prominent  capitalist  and  lawyer  from  the  East,  he  bought 
Yubaville  lots,  put  up  zinc  houses  in  MarysviJle,  and  rented 
those  habitations  at  enormous  rentals.  From  the  sale  of  part 
of  the  lots  he  was  said  to  have  cleared  a  profit  of  $25,000; 
and  it  was  related  of  him  that  he  had  not  been  in  Marysville 

he  bribed  the  Board  of  Aldermen  to  give  him  a  franchise  for  Broad- 
way. (See,  Myers'  "History  of  Public  Franchises  In  New  York  City," 
139-143.)  But  although  the  bribery  was  exposed/  and  a  number  of 
aldermen  were  convicted  and  sent  to  prison,  the  courts  declared  the 
franchise  indefeasible. 

23  See,  V  Lansing's  Reports,  26,  concerning  the  scandalous  effort  of 
Gould  and  Fisk  to  get  control  of  the  Albany  and  Susquehanna  Rail- 
road.    The  circumstances  are  narrated  in  the  "  History  of  the  Great 
American  Fortunes,"  Vol.  Ill:  180-183.     Field  also  appeared  for  Fisk 
in  a  case  involving  the  Chicago  and  Rock  Island  Railroad. 

24  See,  "  Poor's  Railroad  Manual "  for  1880:  p.  182. 

25  The  process  is  described  in  the  "  History  of  the  Great  American 
Fortunes,"  Vol.  Ill :  84-85. 


UNDER    CHIEF   JUSTICE    CHASE  5OI 

more  than  four  months  before  he  had  accumulated  $50,000.'° 
Getting  into  a  dispute  with  Judge  Turner  of  the  California 
Circuit  Court,  primarily  over  the  abolition  question,  Turner 
claimed  that  Field  and  two  other  attorneys  had  villified  the 
court,  and  on  June  10,  1850,  Judge  Turner  expelled  them  from 
the  bar.  Seven  days  later  Judge  Turner  committed  Field  to 
prison  for  forty-eight  hours  and  to  pay  a  fine  of  $500  for  con- 
tempt of  court.  But  the  California  Supreme  Court  issued 
a  mandamus  compelling  Judge  Turner  to  reinstate  Field  and 
the  two  other  attorneys  as  members  of  the  bar.27 


Interests  Represented  by  Field. 

That  Field  was  interested  in  some  of  the  old  Mexican  land 
grants  (genuine  or  otherwise)  in  California  was  well  known; 
and  it  was  due  largely  to  the  influence  of  the  promoters  of 
these  claims  as  well  as  to  the  influence  of  Leland  Stanford 
and  his  associate  railroad  promoters  that  Field  was  elected 
to  the  California  Supreme  Court,  becoming  its  Chief  Justice 
in  1859.  When  a  judge  of  this  court  Field  —  as  was  openly 
charged  —  gave  especial  protection  to  land  titles,  particularly 
those  alleged  to  have  been  derived  from  Mexican  authority. 
In  short,  he  was  the  judge  from  whom  the  land  jobbers  and 
claimants  could  always  expect  favorable  consideration.  A 
letter  was  written  at  this  time  by  United  States  Senator  David 
C.  Broderick  saying  that  Judge  David  T.  Terry  —  who  sat  on 
the  bench  with  Field  —  was  the  only  honest  man  on  the  Cal- 
ifornia Supreme  Court  Bench.  But  when  Broderick  later 
took  this  statement  back,  so  far  as  it  excepted  Terry,  Brod- 
erick was  challenged  to  a  duel  by  Terry,  in  1859,  and  was 

26  On  September  26,  1850,  he  mortgaged  various  of  his  Marysville 
lots  as  security  for  $6,500  of  notes,  and  three  months  later  conveyed 
all  of  his  estate  in  trust  for  the  benefit  of  creditors. —  Case  of  Bentham 
vs.  Field,  Rowe  et  al.,  I  California  Reports,  387. 

2T  See,  People  ex  rel.  Stephen  J.  Field  vs.  Turner,  etc.,  I  California 
Reports,  144  and  152,  and  Ibid.,  188-189. 


5O2  HISTORY   OF   THE    SUPREME   COURT 

shot  and  killed.  Thirty  years  later,  Judge  Terry  was  himself 
killed  by  a  United  States  marshall  accompanying  Field  after 
Terry  had  slapped  Field  in  the  face.28 

The  sponsor  and  pusher  of  Field  for  place  and  power  was 
Leland  Stanford,  himself  a  lawyer.  Projecting  the  Central 
Pacific  Railroad  Company  in  1861,  Stanford,  Collis  P.  Hunt- 
ington,  Charles  Crocker  and  Mark  Hopkins  successfully  de- 
bauched legislatures  and  Congress,  obtained  $25,000,000  in 
Government  bonds,  millions  more  from  the  State  of  California 
and  counties  in  that  State,  and  a  gift  of  a  vast  area  of  public 
lands  —  all  donated,  actually  or  practically,  for  the  purpose  of 
enabling  them  to  build  their  privately  owned  railroad.  While 
Huntington  was  in  Washington  bribing  Congress,  Stanford 
caused  himself  to  be  elected  Governor  of  California,  so  as 
to  manipulate  that  State  for  the  interests  of  the  quartet.  The 
enormous  thefts  that  Stanford  and  his  partners  eventually 
consummated  are  set  forth  in  the  public  documents,  and  are 
elaborately  detailed  elsewhere.29 

Governor    Leland    Stanford    personally    urged    President 
Lincoln  to  appoint  Field  to  the  Supreme  Court  of  the  United 
States.30     It  was  generally  understood  that  with  Field  upon 
the  Bench,  the  predatory  land  claimants  had  at  least  one  Jus-   > 
tice  upon  whose  favor  they  could  generally  rely. 

The  Suttter  Case. 

The  very  next  year  after  Associate  Justice  Field  took  his 
seat,  a  California  land-claim  case  came  up  in  which  action  he 
was  disqualified  from  sitting  for  reasons  best  known  to  him- 
self. This  action  was  what  was  called  the  "  Sutter  Case."  It 

28  See  later. 

29  See,   Chapter  on   "  The   Pacific   Quartet,"   "  History  of  the  Great 
American   Fortunes,"   Vol.    III.     In   cash   alone   they   stole  more   than 
$50,000,000,   and    still    further    enriched   themselves    by    vast   issues   of 
stocks  and  bonds.     See  later. 

30  The  author  has  been  personally  assured  of  this  by  a  man    (still 
living)  who  was  Stanford's  private  secretary  at  this  time. 


UNDER   CHIEF   JUSTICE    CHASE  503 

involved,  according  to  the  Supreme  Court  of  the  United 
States,  "  immense  interests  in  California,  and  questions  greatly 
agitating  a  particular  portion  of  that  State." 

In  1852  John  A.  Sutter  had  come  forward  with  a  claim 
purporting  to  have  been  given  by  the  Mexican  Governor, 
Alvarado,  in  1841.  The  next  year,  1853,  Sutter  submitted  to 
the  Board  of  Land  Commissioners  another  claim  for  twenty- 
two  leagues  more,  alleged  to  have  been  granted  by  Michel- 
torena,  in  1845.  Sutter  had  been  a  military  commandant 
under  Mexican  authority,  and  had  been  charged  with  civil 
jurisdiction,  also;  he  was  the  very  official  who  had  recom- 
mended a  grant  of  six  square  leagues  to  Pearson  B.  Reading 
whose  claim  we  have  described  in  a  previous  chapter.  Sut- 
ter's  claims  to  thirty-three  leagues  in  all  were  confirmed  by 
the  Board  and  by  the  District  Court,  but  the  Supreme  Court 
of  the  United  States  allowed  only  the  first  claim  of  eleven 
square  leagues  as  valid.31 

Now,  two  surveys  of  the  allowed  eleven-league  claim  had 
been  made;  the  new  question  before  the  Supreme  Court  was, 
therefore,  which  of  the  surveys  should  be  validated. 

The  first  survey,  made  in  1859,  was  so  manipulated  as  to 
break  the  claim  into  two  parts  which  were  not  continuous. 
By  this  means  the  claim  was  made  to  include  a  part  of  the 
present  county  of  Sacramento ;  then  the  survey  was  run  along 
the  Feather  River ;  an  intervening  distance  of  several  miles 
was  marked  out  to  separate  one  part  of  the  claim  from  the 
other;  then  the  claim  began  again  at  a  place  called  Canadian 
Ford  and  ran  up  to,  and  included,  Marysville. 

The  second  survey,  made  by  the  Surveyor-General  in  1863, 
located  the  eleven  leagues  in  a  long  continuous  line  of  narrow 
tracts  along  the  Feather  and  American  rivers. 

The  majority  of  the  Supreme  Court  of  the  United  States 
ordered  that  the  survey  of  1859  be  substituted  for  that  of 
1863.  Thus  the  Sutter  claimants  were  able  to  appropriate 

81  U,  S,  v?,  gutter,  XXI  Howard,  170. 


504  HISTORY   OF   THE   SUPREME   COURT 

some  of  the  finest  parts  of  Sacramento  County  and  Marys- 
ville.  The  note  in  the  case  reads :  "  Mr.  Justice  Field  did 
not  sit  in  the  case,  nor  take  part  in  its  decision."  32 

Justice  Grier's  Resignation  Demanded. 

Of  the  men  thus  comprising  the  membership  of  the 
Supreme  Court  of  the  United  States,  the  banking  interests 
knew  to  a  certainty  upon  whom  they  could  depend.  That  the 
most  vigorous,  yet  secret,  influences  were  brought  to  bear 
upon  two  Justices  at  least,  and  possibly  others,  is  fairly 
certain. 

In  the  case  of  Justice  Grier,  the  records  of  the  Supreme 
Court  itself  strongly  tend  to  indicate  this.  We  have  seen  in 
the  previous  chapter  how  before  the  Dred  Scott  decision 
Justice  Grier,  as  revealed  by  his  own  correspondence,  was  in 
collusion  with  President-elect  Buchanan,  and  through  Bu- 
chanan, with  the  representatives  of  the  slaveholders  who  had 
put  Buchanan  into  office,  whose  interests  and  plans  Buchanan 
was  elected  to  further.  Of  Buchanan's  selecting  certain  arch 
slavery  representatives  as  members  of  his  Cabinet,  and  how 
they  stripped  the  North  of  munitions  of  war  and  transferred 
them  to  the  South  —  this  is  an  elemental  historical  fact.  In 
the  Legal-Tender  case,  Justice  Grier's  course  was  even  more 
serpentine ;  he  played  fast  and  loose  with  both  sides,  singularly 
shifting  from  one  side  to  another.  His  vacillation  was  so 
suspicious  and  remarkable,  that  not  a  single  one  of  his  col- 
leagues, either  those  favoring  the  Legal  Tender  Act  or  those 
against  it,  could  find  any  excuse  for  his  action ;  they  lost  pa- 
tience, and  evinced  their  distrust  by  the  significant  and  un- 
precedented action  of  demanding  his  resignation. 

"  When,"  says  Rhodes,  "  the  determination  of  the  Court 
was  arrived  at  on  November  27,  1869,  four  justices  concurred 
with  Chase:  Nelson,  Clifford,  Grier  and  Field,  but  before  the 

32  II  Wallace's  Reports,  587. 


UNDER    CHIEF   JUSTICE   CHASE  505 

opinion  was  read  Grier  resigned.  Swayne  and  Davis  agreed 
with  Miller.  The  decision  could  be  stated  as  five  or  four 
to  three  according  to  one's  individual  preferences,  but  as  a 
matter  of  history,  the  concurrence  of  Grier  carries  no  weight 
whatever.  When  the  first  vote  on  the  Hepburn  vs.  Griswold 
case  was  taken  in  conference,  the  Court  stood  4-4,  Grier  pro- 
nouncing in  favor  of  the  constitutionality  of  the  Legal  Tender 
Act ;  but  before  the  conference  closed,  he,  in  another  case, 
stated  an  opinion  inconsistent  with  that  vote.  This  incon- 
sistency being  called  to  his  attention,  he  changed  his  vote  and 
went  over  to  the  side  of  Chase,  Nelson,  Clifford  and  Field. 
Within  a  week  from  that  day  every  judge  on  the  bench  au- 
thorized a  committee  of  their  number  to  say  to  Grier  '  that  it 
was  their  unanimous  opinion  that  he  ought  to  resign.' " 33 
Grier  did  accordingly,  in  December,  1869,  resign,  his  resigna- 
tion to  take  effect  on  January  31,  1870. 

Legal-Tender  Decision  Favors  the  Bankers. 

By  a  majority  of  one,  therefore,  the  Legal  Tender  Act 
was  declared  unconstitutional,  Chief  Justice  Chase  himself 
writing  the  opinion.  The  decision,  handed  down  on  Feb- 
ruary 7,  1870,  declared  that  prior  to  the  enactment  of  the 
Legal  Tender  law  of  1862,  gold  formed  the  only  legal  tender, 
and  that  all  promises  to  pay  in  contracts  were  tacitly  under- 
stood to  be  payable  in  gold.  So  far  as  the  Legal  Tender  Act 
applied  to  preexisting  contracts,  it  was,  under  Chase's  de- 
cision, inoperative;  the  act  could  not  be  retroactive.34 

Why  did  Chief  Justice  Chase  decide  against  the  constitu- 
tionality of  a  law  that  as  Secretary  of  the  Treasury  he  had 
been  known  to  view  as  being  thoroughly  constitutional  ?  The 
explanation  generally  given  was  that  in  his  incorrigible  aspira- 

33  "  History  of  the  United  States,  1850-1877,"  Vol.  VI :  262-263,  citing 
statement  on   April  30,    1870,   by   Swayne,   Miller,   Davis,    Strong  and 
Bradley.     Also,  Bradley's  "  Miscellaneous  Writings,"  p.  73. 

34  Case  of  Hepburn  vs.  Griswold,  VIII  Wallace's  Reports,  626. 


506  HISTORY   OF   THE    SUPREME    COURT 

tion  to  become  President,  he  desired  to  gain  the  further  good 
will  of  the  bankers,  and  to  insure  their  support.  Some  critics 
held  that  in  view  of  his  inconsistencies  he  had  a  private  un- 
derstanding with  the  banking  interests,  but  no  evidence  what- 
ever has  ever  been  produced  to  bear  out  that  charge.  That 
he  was  actuated  by  personal  mercenary  motives  no  one  then 
believed,  or  now  imputes.  He  was  a  politician,  and  was 
willing  to  do  whatever  could  advance  his  political  ambitions  — 
a  form  of  corruption  which,  as  we  have  seen,  had  influenced 
previous  members  of  the  Supreme  Court.  Assuming  that  he 
was  personally  honest,  as  honesty  was  understood,  he  was 
politically  dishonest. 

"  Chase's  open  craving  for  the  Presidency,"  Rhodes  nar- 
rates, "  detracted  from  the  weight  of  his  opinion.  In  the 
spring  of  1869,  the  Chief  Justice  and  George  F.  Hoar  walked 
home  together  from  a  meeting  of  a  scientific  club  in  Wash- 
ington. For  the  whole  distance,  about  a  mile,  Chase  talked 
of  the  next  nomination  for  the  presidency,  the  prospects  of 
the  various  candidates  and  the  probable  chances  of  a  Demo- 
cratic candidate  who  should  appeal  to  Republicans  disaf- 
fected with  the  present  policies  of  their  party.  Somewhat 
later,  during  a  half  hour's  drive  across  Baltimore,  he  talked 
incessantly  in  the  same  strain  to  a  stranger.  He  had  the 
presidency  '  on  the  brain/  wrote  Hoar.  His  conversations, 
his  solicitations  became  a  scandal  and  must  have  led  his  as- 
sociates in  the  consultation  room  to  look  upon  him  with  sus- 
picion. .  .  ." 35  Rhodes,  nevertheless,  thinks  that  Chase, 
in  the  legal-tender  decision,  acted  from  honest  conviction. 

But  there  was  another  factor  that  Rhodes  neither  explains 
nor  even  mentions.  Infallibly,  a  man's  early  economic  in- 
terests, associations  and  training,  long  persisted  in,  have  a 
determining  influence  upon  his  views,  and  conspire  to  sway 
or  prejudice  him  in  one  direction  or  another.  As  a  young 

35  "  History  of  the  United  States,  1850  to  1877,"  Vol.  VI :  266,  citing 
Hoar's  "  Autobiography,"  Vol.  1 :  282. 


UNDER    CHIEF   JUSTICE    CHASE  507 

lawyer,  and  in  middle  age,  Chase's  self-interested  associations 
were  mainly  with  bankers,  and  as  an  older  man  he  was  con- 
stantly, as  Secretary  of  the  Treasury,  in  personal  touch  with 
the  foremost  bankers  of  the  country.  Nearly  his  whole  adult 
life,  it  may  be  said,  was  —  so  far  as  his  personal  interests 
and  connections  went  —  an  unbroken  association  with  bankers, 
and  a  corresponding  susceptibility  and  flexibility  to  their 
interests.  In  the  light  of  this  fact  —  and  a  highly  important 
one,  reflecting  the  whole  processes  of  present  society  upon 
one's  mental  attitude  —  some  clear  explanation  is  afforded 
of  at  least  one  reason  why  Chase  favored  the  banking  power. 

The  same  influence  probably  had  its  effect  upon  Justice 
Clifford,  whose  family,  as  we  have  noted,  was  connected  by 
a  double  marriage  with  the  largest  banking  family  in  Port- 
land, Maine.  As  for  Justice  Nelson,  he  was  a  relic  of  the  era 
of  state  banking,  with  its  wild-cat  currency  issue,  of  which  he 
had  been  an  avowed  advocate. 

Nor  was  Justice  Field's  stand  a  mystery.  In  concurring 
with  the  majority  he  held  that  the  legal-tender  clause  was 
unconstitutional  as  applied  to  prior  contracts  only.  Such  a 
dictum  could  in  nowise  affect  the  interests  of  his  patrons, 
Leland  Stanford  and  Collis  P.  Huntington.  The  mortgages 
that  Stanford  and  his  fellow  promoters  gave,  were  although 
subsequent  to  1862,  mortgages  to  the  Government,  not  to 
private  bankers.  And  the  plan  of  cheating  the  Government 
out  of  much  of  its  advances  for  the  building  of  the  Central 
Pacific  Railroad  was,  thanks  to  the  act  of  1864,  already  formu- 
lated, to  be  finally  consummated  later  by  means  of  a  decision 
of  the  Supreme  Court  of  the  United  States,  with  Justice  Field 
on  the  Bench. 


Congress  Estops  the  Supreme  Court. 

In   striking   contrast   with   the    Supreme    Court's   edict   of 
unconstitutionally    in   the   legal-tender   case   was   its   action 


508  HISTORY   OF   THE    SUPREME   COURT 

in  another  case  at  this.  time.  Congress  had  passed  various 
laws  designed  to  facilitate  reconstruction  measures  in  the  late 
rebellious  states,  and  to  enforce  obedience  to  the  military 
authorities  in  control.  William  H.  McCardle  was  arrested  in 
Southern  Mississippi  charged  with  attacks,  in  a  newspaper  of 
which  he  was  editor,  upon  General  Ord  and  other  officers. 
Alleging  unlawful  restraint,  McCardle  sued  from  the  Circuit 
Court  to  the  Supreme  Court  of  the  United  States  for  a  writ 
of  habeas  corpus.  The  Supreme  Court  in  1867  was  consid- 
ering asserting  its  jurisdiction,  when,  to  prevent  that  court 
from  interfering,  Congress,  on  March  27,  1868,  passed  a 
prohibitive  act.  Section  2  of  that  act  repealed  certain  parts 
of  the  old  judiciary  act  of  1789  which  had  allowed  certain 
appeals  to  the  Supreme  Court  of  the  United  States.  Further, 
Section  2  estopped  the  Supreme  Court  from  exercising  juris- 
diction in  the  case  of  any  such  appeals.30 

When  the  McCardle  case  came  up  again  in  December, 
1868,  the  Supreme  Court  was  compelled  to  admit  that  Con- 
gress had  the  power  of  regulating  its  jurisdiction.  Deliver- 
ing the  Court's  unanimous  opinion,  Chief  Justice  Chase,  in 
December,  1868,  acknowledged  the  paramount  authority  of 
Congress.  "  It  is  quite  true,"  he  pronounced,  "  as  was  argued 
by  the  counsel  for  the  petitioner,  that  the  appellate  jurisdic- 
tion of  this  court  is  not  derived  from  the  acts  of  Congress. 
It  is,  strictly  speaking,  conferred  by  the  Constitution.  But 
it  is  conferred  '  with  such  exceptions  and  under  such  regula- 
tions as  Congress  shall  make.'  .  .  . 

"  We  are  not  at  liberty  to  inquire  into  the  motives  of  the 
legislature.  We  can  only  examine  into  its  power  under  the 
Constitution,  but  the  power  to  make  exceptions  to  the  appel- 
late jurisdiction  is  given  in  express  words. 

"  What,  then,  is  the  effect  of  the  repealing  act  upon  the 
case  before  us?  We  cannot  doubt  as  to  this:  Without  juris- 
diction the  court  cannot  proceed  at  all  in  any  cause.  Jurisdic- 

39  XV  Statutes  At  Large,  44. 


UNDER    CHIEF   JUSTICE    CHASfi 

tion  is  power  to  declare  law,  and  when  it  ceases  to  exist  the 
only  function  remaining  to  the  court  is  that  of  announcing 
the  fact  and  dismissing  the  cause.  And  this  is  not  less  clear 
upon  authority  than  upon  principle.  .  .  . 

"  It  is  quite  clear,  therefore,  that  this  court  cannot  proceed 
to  pronounce  judgment  in  this  case,  for  it  has  no  longer 
jurisdiction  of  the  appeal;  and  judicial  duty  is  not  less  fitly 
performed  by  declining  ungranted  jurisdiction  than  in  exer- 
cising firmly  that  which  the  Constitution  and  the  laws  con- 
fer." 3T 

Here  was  a  case  involving  so  clear-cut  a  proposition  that 
the  Supreme  Court  could  do  nothing  but  admit  the  full  au- 
thority of  Congress  in  the  premises.  Had  the  case  concerned 
a  "  contract "  or  the  construction  of  the  "  obligation  of  a  con- 
tract "  the  Supreme  Court  no  doubt  would  have  asserted  its 
power,  real  or  usurped,  of  deciding  upon  its  constitutionality 
under  that  renowned  Constitutional  clause  which  had  germi- 
nated in  Wilson's  brain  eighty  years  before. 

Railroads  War  Against  the  Legal-Tender  Decision. 

Gratifying  as  it  was  to  the  bankers,  the  Legal-Tender  de- 
cision, on  the  other  hand,  enraged  the  railroad  magnates. 
The  market  value  of  railway  mortgages  immediately  went  up 
—  perhaps  the  most  significant  commentary  on  what  the  de- 
cision meant  to  the  bankers.  Every  newspaper  and  politician 
subsidized  by  the  railroad  interests  denounced  the  decision, 
and  conversely,  the  banking  journals  praised  it.  The  influ- 
ence of  the  Pennsylvania  Railroad  and  other  large  corporations 
which  had  outstanding  bonds  of  issues  prior  to  1862,  was 
directed  against  the  decision.  On  the  day  on  which  Chase 
read  his  opinion  gold  was  quoted  at  from  121^6  to  I2O>£.38 

"See,  "Ex  Parte  McCardle,"  VI  Wallace's  Reports,  318,  and  VII 
Ibid.,  506-515.  The  Supreme  Court,  accordingly,  dismissed  the  case  for 
want  of  jurisdiction. 

ss  Rhodes,  Vol.  VI :  265. 


510  HISTORY   OF   THE    SUPREME   COURT 

Railroad  magnates  saw  the  immediate  necessity  of  opening  a 
newspaper  campaign  demanding  the  reversal  of  the  decision. 
Why,  complained  the  railroad  owners,  should  they  be  com- 
pelled to  pay  the  interest  and  principal  of  their  bonds  in  gold, 
when  their-  passenger  fares  and  freight  money  were  received 
in  paper  currency  ?  39  From  their  point  of  view,  a  valid  com- 
plaint, most  assuredly. 

With  these  two  powerful  capitalist  groups  in  direct  and  in- 
tense opposition,  the  contest  was  clearly  defined,  and  the  final 
result  impatiently  awaited. 

The  bankers  had  won  in  the  Supreme  Court.  But  in  Con- 
gress the  railroad  power  had  been  steadily  increasing.  Within 
ten  years  great  changes  in  representation  had  taken  place. 
The  immense  donations  of  public  lands  and  money  that  the 
railroad  promoters  had  received  from  Government,  States, 
counties  and  municipalities,  now  constituted  the  basis  of  a 
gigantic  power.  The  railroad  corporations  had  systematically 
corrupted  politics ;  they  usually  dictated  who  should  go  to 
Congress,  and  who  should  be  defeated.  They  named  State 
officials  and  judges  of  State  courts.  Suddenly  they  were 
confronted  with  the  urgent  necessity  of  securing  control  of 
the  Supreme  Court  of  the  United  States,  and  of  insuring  that 
control  quickly.  Some  of  the  ablest  men  in  Congress  —  po- 
litical leaders  of  both  parties  —  were  railroad  attorneys,  re- 
tainers or  stockholders.  United  States  Senator  Sherman,  in 
fact,  was  one  of  the  principal  stockholders  in  the  Pittsburg, 
Fort  Wayne  and  Chicago  Railroad  —  now  a  constituent  part 
of  the  Pennsylvania  Railroad  system.40 

39  Rhodes,  Vol.  VII :  27. 

40  See,  Case  of  State  of  Ohio  vs.  Sherman  et  al,  XXII  Ohio  State 
Reports,  411.     When,  in  1869,  the  Pittsburg,  Fort  Wayne  and  Chicago 
Railroad  Company  leased  its  entire  road  to  the  Pennsylvania  Railroad 
for  a  term  of  999  years,  the  State  of  Ohio  brought  an  abortive  suit  for 
an  ouster  for  usurpation  and  unlawful  exercise  of  franchise,  etc.     As 
a  young  attorney,  Sherman  had  started  out  as  a  railroad  counsel ;  in 
1848,  he  was  attorney  for  the  Vermilion  and  Ashland  Railroad. —  XVIII 
Ohio  Reports,  189. 


UNDER    CHIEF   JUSTICE    CHASE  51 1 

Growth  of  the  Railroad  Power. 

For  twenty  years  the  bribery  of  members  of  Congress  and 
of  the  Texas  Legislature  by  railroad  promoters  had  gone 
on  incessantly.  Of  the  155,273,560.73  acres  of  public  lands 
granted  directly  by  the  United  States  Government,  or  by 
it  through  States,  to  railroad  corporations,  the  greater  part 
had  already  been  obtained  by  corrupt  legislation.  From  1850 
to  1870  not  less  than  one  hundred  and  thirty-three  separate 
grants  of  public  lands  had  been  made  by  Congress  to  nearly 
as  many  different  railroad  corporations.41  In  addition,  the 
State  of  Texas  (which  retained  control  of  its  lands)  granted 
a  total  of  32,400,000  acres,  the  bulk  of  which  had  already  been 
appropriated  by  the  year  i87o.42  There  were  also  donations 
of'  State  lands  in  the  East  over  which  the  United  States  Gov- 
ernment had  no  jurisdiction,  as  for  example  the  Legislature 
of  Maine  granting,  in  1868,  a  donation  of  700,000  acres  of 
land  to  the  European  and  North  American  Railroad.43 

Altogether,  counting  the  donations  of  Government,  of  the 
State  of  Texas,  of  other  individual  States  and  of  counties 
and  municipalities,  the  railroad  corporations  had  received  the 
major  part  of  a  total  of  about  212,000,000  acres.  Nor  does 
this  estimate  comprise  the  gifts  of  immensely  valuable  terminal 
facilities,  municipal  rights  of  way,  harbor  rights  and  other 
privileges  of  a  value  of  hundreds  of  millions  of  dollars. 
Finally,  from  either  Government,  States,  counties  or  cities,  or 
from  all,  they  had  received  loans  or  gifts  of  public  funds  ap- 
proximating many  hundreds  of  millions  of  dollars ;  the  total 
vast  amount  has  never  yet  been  computed. 

Possessed  of  these  immense  resources,  the  railroad  interests 
were  formidably  intrenched. 

41  Report  of  The  Public  Land  Commission,  1905 :  pp.  144-155. 

42  Biennial  Report  of  the  Commissioners  of  the  General  Land  Office 
of  Texas,  1908-10:  p.  29. 

43  See,  Seventh  Report  of  the  Forest  Commissioner  of  Maine,  1908: 
p.  oo.     • 


512  HISTORY   OF   THE    SUPREME   COURT 

Corruption  by  Railroad  Corporations. 

For  purposes  of  illustration,  a  few  examples  of  this  long- 
continuing  corruption  will  be  given. 

In  1853  Alexander  J.  Marshall  sued  the  Baltimore  and 
Ohio  Railroad  for  the  sum  of  $50,000  due  him  on  a  contract 
for  lobbying  through  the  Virginia  Legislature  a  bill  granting 
that  company  a  comprehensive  right  of  way  to  the  Ohio 
River.  "  Without  impropriety,"  he  wrote  on  November  17, 
1846,  to  Louis  McLane,  a  politician  of  national  note,  and 
president  of  the  railroad  company,  "  I  may  say  for  myself 
I  have  had  considerable  experience  as  a  lobby  member  before 
the  Legislature  of  Virginia.  For  several  years  past  I  have 
been  before  that  body  with  difficult  and  important  measures 
affecting  the  improvement  of  this  region  of  the  country ;  and 
I  think  I  understand  the  character  and  component  material 
of  that  honorable  body.  .  .  ."  44  The  Supreme  Court  of 
the  United  States  decided  against  Marshall,  holding  among 
other  grounds,  that  the  enforcement  of  such  a  corrupt  con- 
tract was  against  public  policy.45 

In  1856  the  LaCrosse  and  Milwaukee  Railroad  Company 
had  bribed,  with  $800,000  of  bonds,  nearly  the  whole  of  the 
Wisconsin  Legislature,  the  Governor  and  newspaper  editors 
for  the  advocacy  and  passage  of  an  act  giving  that  company 
a  land  grant  of  about  1,000,000  acres  valued  at  that  time  at 
nearly  $i8,ooo,ooo.46  A  special  committee  of  Congress  was 
appointed  in  1857  to  investigate  charges  of  corruption  in  con- 
nection with  an  act  giving  an  enormous  land  grant  in  Iowa, 
Minnesota  and  other  states  to  the  Des  Moines  Navigation  and 

44  Marshall  vs.  Baltimore  and  Ohio  Railroad  Company,  XVI  Howard's 
Reports,  315. 

45  Ibid.,  314,  etc.     Similar  bribery  cases  of  the  times  are  set   forth 
in  XVIII  Pickering's  Massachusetts  Reports,  470;  VII  Watt's  Reports, 
152,  etc.,  etc. 

46 "  Report  of  the  Joint  Select  Committee  Appointed  to  Investigate 
Into  Alleged  Frauds  and  Corruption,"  etc.  Appendices  to  (Wisconsin) 
Senate  and  Assembly  Journals,  1858. 


UNDER    CHIEF   JUSTICE   CHASE  513 

Railroad  Company.  The  Committee  recommended  the  ex- 
pulsion of  four  members  of  Congress,  reporting  that  one  of 
them,  Orasmus  B.  Matteson,  was  a  leader  of  a  corrupt  com- 
bination and  had  received  for  disbursement  a  corruption  fund 
of  $100,000  and  "  other  valuable  considerations."  47 

These  are  merely  a  few  of  the  many  instances  that  could 
be  cited,  and  many  more  of  which  are  related  in  the  "  History 
of  the  Great  American  Fortunes."  The  corruption  con- 
tinued during,  and  after,  the  Civil  War.  In  the  year  1868 
alone,  for  example,  Jay  Gould  and  his  associate  directors  of 
the  Erie  Railroad,  had  expended  at  least  a  million  dollars  in 
corrupting  the  New  York  Legislature,  and  Cornelius  Vander- 
bilt  had  spent  a  large  amount  for  the  same  purpose.48  Hand 
in  hand  with  the  Tweed  regime  then  plundering  New  York, 
Gould  and  Fisk  were  able  to  purchase  both  laws  and  judges; 
Barnard  and  Cardozo  and  other  judges  of  the  New  York 
State  Supreme  Court  were  their  supple  tools ;  after  the  Tweed 
"  ring "  was  overthrown  Barnard  was,  indeed,  impeached ; 
and  Cardozo  resigned  in  time  to  save  himself  from  impeach- 
ment.49 And  of  the  many  scandals  developing  in  Congress 
and  in  the  State  Legislatures,  we  will  here  mention  only  one, 
—  and  a  very  typical  example  —  the  Credit  Mobilier  Company 
swindle.  In  this  affair  many  of  the  foremost  capitalists  of 
the  country  were  involved,  and  a  galaxy  of  leading  politicians 
in  Congress.  The  testimony  revealed  that  in  the  constructing 
of  the  Union  Pacific  Railroad  at  least  $44,000,000  had  been 
stolen  by  the  falsifying  of  construction  accounts  and  by  other 

47  Reports  of  Committees,  House  of  Representatives,  Thirty-fourth 
Congress,  Third  Session,  1856-57,  Report  No.  243,  Vol.  III.     By  a  con- 
struction of  the  law  made  by  the  land  grabber  Robert  J.  Walker,  when 
Secretary  of  the  Treasury,  the  grant  of  this  company  was  vastly  en- 
larged.    In  1892  the  Government  tried  to  recover  much  of  the  lands, 
but  the  Supreme  Court  of  the  U.  S.  decided  adversely  to  the  Govern- 
ment.    See  later. 

48  See,  "  History  of  the  Great  American  Fortunes,"  particularly  Vol. 
II:  310-317. 

49  See,  "  History  of  Tammany  Hall,"  296-297. 


514  HISTORY   OF    THE    SUPREME    COURT 

methods.50  James  G.  Elaine,  Speaker  of  the  House  of  Repre- 
sentatives, was  one  of  those  implicated  in  the  Credit  Mobilier 
transactions. 

Packing  of  the  Supreme  Court. 

How  were  the  railroad  interests  to  get  control  of  the  Su- 
preme Court  of  the  United  States?  Partly  by  means  of  Con- 
gress and  more  definitely  through  President  Grant.  On 
March  3,  1863,  Congress  had  passed  an  act  (12  Statutes  At 
Large,  794)  that  the  Supreme  Court  should  consist  of  ten 
members ; 51  the  purpose  of  that  enactment  was  to  provide  a 
circuit  for  California.  Three  years  later  —  on  July  23,  1866, 
—  another  act  was  passed  declaring  that  the  number  of  judges 
should  be  thereafter  reduced  to  seven,  this  change  to  take 
effect  as  soon  as  by  death  or  retirement  the  number  sitting 
should  be  reduced  to  seven.  The  intention  of  this  act  was 
to  prevent  President  Johnson,  to  whose  views  on  reconstruc- 
tion the  majority  in  Congress  were  antagonistic,  from  getting 
control  of  the  Supreme  Court.  Justice  Catron  had  died  in 
May,  1863,  but  no  actual  appointment  of  any  successor  had 
taken  effect.  This  was  the  state  of  affairs  when  on  April  10, 
1869,  Congress  passed  another  act  restoring  the  number  of 
justices  to  nine.  Why  was  this  statute  passed?  Did  the  rail- 
road power  foresee  the  alignment  of  the  Supreme  Court  on 
the  Legal  Tender  Act,  and  was  preparing  accordingly  to  have 
railroad  attorneys  appointed  and  reverse  Chase's  decision? 
Whether  or  not  that  was  the  purpose,  the  result  was  exactly 
as  though  the  arrangement  had  been  premeditated  and  well 
planned.  Two  vacancies  caused,  in  December,  1869,  by  the 
death  of  Justice  Wayne  and  the  resignation  of  Justice  Grier, 
gave  President  Grant  the  opportunity  of  making  appointments 
in  their  places. 

50  Reports   of    Committees,    Credit    Mobilier   Reports,   Forty-Second 
Congress,  Third  Session,  1872-73,  Doc.  No.  78 :  xiv-xx. 

51  It  was  under  this  act  that  Justice  Field  was  appointed. 


UNDER    CHIEF   JUSTICE   CHASE  515 

Grant  Surrounded  by  Venal  Confidants. 

That  Grant  would  appoint  railroad  attorneys  was  an  ac- 
cepted conclusion.  It  was  well  known  that  he  was  not  above 
receiving  gifts,  as  it  had  been  equally  well  known  that  Presi- 
dent Lincoln's  wife  had  not  refused  them ;  on  one  occasion, 
as  Ben  Perley  Poore  tells  in  his  "  Reminiscences,"  Mrs.  Lin- 
coln accepted  a  valuable  shawl,  valued  at  $1,000,  from  A.  T. 
Stewart,  a  New  York  capitalist,  at  the  very  time  Stewart  was 
a  contractor  for  supplying  the  army  with  blankets.  This 
giving  of  gifts  was  a  favorite  and  safe  form  of  winning  favor. 
But  so  far  as  money  bribes  were  concerned  Grant  was  beyond 
reproach.  He,  however,  was  surrounded  by  as  corrupt  a  corps 
of  intimates,  confidants  and  factotums  as,  perhaps,  had  ever 
been  known  in  the  White  House.  They  had  his  ear  and 
trust;  and  when  their  integrity  was  impeached  he  resented 
the  fact,  and  sought  to  shield  them  in  every  possible  way. 
They  seem  to  have  manipulated  Grant  much  as  they  willed. 

Vicious  scandals  kept  developing  in  the  war  and  navy  de- 
partments and  it  was  shown  that  Grant's  own  private  secre- 
tary and  intimate  friend,  Orville  E.  Babcock,  was  a  member 
of  the  Whiskey  Ring  and  was  sharing  in  the  proceeds  of  its 
frauds.52  Grant's  brother-in-law,  A.  R.  Corbin,  had  been 
a  lobbyist  in  Congress  for  the  Illinois  Central  Railroad,  and 
was  both  an  accomplice  of  Gould  and  a  participant  in  the 
profits  of  Gould's  gold  conspiracy  operations  of  1869,  leading 
to  "  Black  Friday."  53 

Grant's  open  association  with  Gould  and  Fisk  was,  in  truth, 
a  national  scandal;  he  went  on  a  junketing  steamboat  party 
with  them ;  he  appeared  with  them  at  the  theater ;  and  this 
public  countenance  was  of  the  most  incalculable  value  to  them, 

52  The  Whisky  Ring  defrauded  the  Government  out  of  many  millions 
of  dollars  in  revenue  on  the  manufacture  of  whisky  by  falsifying  the 
returns  with  the  collusion  of  Government  officials. 

r>3  Gold  Panic  Investigation,  House  Report  No.  31,  Forty-first  Con- 
gress, Second  Session,  1870:  157. 


516  HISTORY  OF   THE   SUPREME   COURT 

in  that  it  spread  the  public  impression  that  Grant  was  in 
league  with  them,  and  gave  them  the  support  of  his  para- 
mount authority.  We  cannot  assume  that  he  was  so  simple- 
minded  as  to  have  been  an  unconscious  dupe,  and  not  know 
(what  every  intelligent  man  knew)  of  their  corrupt  character 
and  the  enormous  frauds  and  thefts  that  they  were  consum- 
mating. On  the  other  hand,  it  is  not  probable  that  Grant 
ever  received  any  illicit  money,  or  deliberately  connived  at 
fraud.  Some  writers  hold  that  his  early  life  of  poverty  re- 
acted on  him  to  such  an  extent  that  he  was  glad  to  be  in  the 
society  of  men  of  money.  This  is  but  a  paltry  explanation, 
for  Grant  well  knew  how  fortunes  were  being  acquired ;  he 
had,  as  a  general  during  the  war,  written  indignant  letters  on 
the  shameless  frauds  committed  by  army  contractors  in  west- 
ern Tennessee,  and  had  bitterly  denounced  them. 

Whatever  his  motives,  the  fact  remained  that  as  President, 
Grant  well  knew  the  methods  by  which  his  friends  and  adher- 
ents were  getting  rich  and  winked  at  them.  What  was  of 
much  greater  importance,  he  was  perfectly  willing  that  capi- 
talists of  every  description  should  have  their  way  and  con- 
trol his  actions,  knowing  as  he  did  that  without  their  support 
he  could  not  get  adequate  campaign  funds,  nor  perhaps  even 
secure  a  renomination.  To  represent  and  advance  their  in- 
terests was  his  aim.  One  of  the  keenest  political  observers 
of  the  time  —  Samuel  Bowles,  editor  and  proprietor  of  the 
Springfield  Republican  —  thus  expressed  the  situation: 
"  Money-bags  are  always  and  everywhere  conservative..  When 
you  have  proved  to  the  busy  wealth  seeker  that  the  President 
has  shown  an  indecent  fondness  for  gifts,  that  he  has  appointed 
rascally  or  incapable  kinsmen  to  office,  that  he  has  cracked, 
if  not  broken  the  laws,  what  have  you  accomplished  by  your 
denunciation?  They  will  reply  to  you,  'General  Grant  is  a 
safe  man.'  .  .  .  The  railroad  rings,  the  banking  rings, 
the  iron  and  coal  rings,  the  money-grabbing  combinatfons  of 
every  name  and  sort,  are  clear  in  the  conviction  that  one  good 


UNDER    CHIEF   JUSTICE   CHASE  517 

turn  deserves  another,  and  have  come  down  handsomely  for 
the  general  campaign  fund."  54 


Two  Railroad  Attorneys  Appointed. 

On  December  20,  1869,  President  Grant  appointed  Edwin 
M.  Stanton,  but  Stanton  died  four  days  later.53  Then,  on  the 
same  day  that  Chase's  opinion  in  the  Legal-Tender  case  was 
announced,  Grant  sent  the  nominations  of  William  Strong  and 
Joseph  P.  Bradley,  as  Associate  Justices,  to  the  Senate.  Their 
nominations  were  shortly  afterward  confirmed.56 

Both  Strong  and  Bradley  were  conspicuous  railroad  attor- 
neys and  directors.  Born  in  1808,  Strong  had  studied  at 
Yale,  and  had  begun  the  practice  of  law  at  Reading,  Pennsyl- 
vania. He  was,  for  many  years  before,  and  after,  the  Civil 
War  the  regular  counsel  for  the  Philadelphia  and  Reading 
Railroad,  and  for  the  Lebanon  Valley  Railroad,  which  was 
merged  into  the  Philadelphia  and  Reading  Railroad.57  He 
was  a  member  of  the  Reading  Common  Council,58  a  director 
of  the  Farmers'  Bank  and  a  director  of  the  Lebanon  Valley 

54  Merriam's  "  Life  and  Time  of  Samuel  Bowles,"  Vol.  II :  195-196. 

55  As  an  attorney,   Stanton  had  been  a  noted  railroad  lawyer.     He 
was  also  a  stockholder  in  the  Pittsburg  and  Steubenville  Railroad. — 
See  Pittsburg  and  Connellsville  Railroad  Co.,  vs.  Clarke  and  Thaw  — 
29  Pa.  State  Reports,  147. 

56  The  Washington  dispatch  of  the  New  York  Times,  February  II, 
1870,  read :     "  There  is  authority  for  saying  that  in  the  matter  of  the 
recent  decision  in  the  legal   tender  cases,  both   Mr.   Strong  and   Mr. 
Bradley   have   on   occasions   long   prior   to   their   present   appointment 
given  expression  to  views  in  consonance  with  those  expressed  in  the 
dissenting  opinion  of  Mr.  Justice  Miller." 

57  For  Strong's  early  appearances  as  a  railroad  lawyer,  see  VI  Penn- 
sylvania State  Reports,  74;  XXI  Ibid.,  188;  XXIV  Ibid.,  467,  etc.,  etc. 

58  The  Reading  Common  Council  was  induced  to  adopt  an  ordinance 
calling  for  a  popular  vote  to  decide  upon  a  municipal  subscription  of 
$2,000.000  to  aid  in  the  construction  of  the  Lebanon  Valley  Railroad, 
of  which,  as  stated  above,   Strong  was  both  a   director  and  counsel. 
The  vote  was  in  favor  of  the  measure.     When  an  injunction  was  sought 
on  the  ground  that  the  ordinance  was  unconstitutional.  Strong  appeared 
as   counsel    for   the    Lebanon    Valley    Railroad.    Judge    Black,    in    the 
Pennsylvania  Supreme  Court,  in  1853,  refused  to  grant  the  injunction. 
--XXI  Pa.  State  Reports,  188-203. 


518  HISTORY   OF    THE    SUPREME   COURT 

Railroad.  In  Congress  from  1847  to  1852,  he  later,  in  1857, 
was  elected  a  member  of  the  Pennsylvania  Supreme  Court 
for  fifteen  years,  but  he  resigned  from  this  bench  in  1868, 
removed  to  Philadelphia,  and  resumed  a  railroad  practice 
more  lucrative  than  ever. 

Bradley  was  both  a  noted  railroad  lawyer  and  a  capitalist. 
Born  in  1813,  the  son  of  a  farmer  and  teacher,  he  was  admit- 
ted to  the  bar  in  1839,  and  commenced  the  practice  of  law 
at  Newark,  N.  J.,  in  partnership  with  John  P.  Jackson,  super- 
intendent of  the  New  Jersey  Railroad.  Bradley,  thereafter, 
represented  that  railroad  in  all  important  cases;  subsequently 
he  was  also  the  leading  counsel  of  the  Camden  and  Amboy 
Railroad,  and  for  various  companies  associated  under  the 
name  of  the  United  Railways  of  New  Jersey,  which  later  be- 
came the  New  Jersey  branches  of  the  Pennsylvania  Railroad 
Company.  In  1844  ne  nac^  married  Mary,  daughter  of  Chief 
Justice  Hornblower,  of  New  Jersey. 


Bradley's  Long  Railroad  Service. 

Bradley  was  very  closely  associated  both  as  counsel  and 
fellow  railroad  director  with  Edwin  A.  Stevens,  a  conspicu- 
ous steamboat  and  railroad  owner  in  New  Jersey.  If  the 
numerous  records  state  the  case  correctly,  the  fortune  that 
Stevens  acquired,  and  part  of  which  he  later  used  to  blossom 
out  as  a  philanthropist,  was  got  by  a  sequence  of  fraud  and 
bribery. 

In  one  case,  coming  up  in  the  Chancery  Court,  in  1847, 
Stevens,  his  brothers,  and  Robert  F.  and  Richard  Stockton 
(the  latter  of  whom  was  subsequently  associated  with  Bradley 
as  counsel)  were  accused  of  collusion  in  the  fraudulent 
manipulation  of  the  stock  and  of  the  freight  and  profits  of  the 
New  Brunswick  Steamboat  and  Canal  Company,  the  Union 
Transportation  Line,  the  Camden  and  Amboy  Transportation 


UNDER    CHIEF   JUSTICE    CHASE  519 

Company  and  the  Delaware  and  Raritan  Canal  Company. 
The  suit  was  brought  by  one,  John  D.  Hagar,  a  stockholder 
who,  after  being  granted  an  injunction  restraining  certain  ac- 
tions, sued  for  an  accounting  for  some  $400,000  and  other 
sums  which  he  alleged  had  been  improperly  appropriated  and 
expended ;  he  further  alleged  that  by  a  series  of  fraudulent 
manipulations  the  lesser  stockholders  had  been  cheated  and 
"  frozen  out."  These  charges  the  defendants  denied.  In  de- 
nying Hager's  petition  for  a  receiver,  Chancellor  Halstead 
practically  sustained  the  allegations  of  fraud.  The  Chancel- 
lor said  that  if  a  large  accumulation  of  property  should  ap- 
pear to  be  the  result  of  a  fraud  on  the  rights  of  others  not  par- 
ties to  the  suit,  the  court  would  not  become  the  instrument 
to  distribute  the  moneys  accumulated  by  such  fraud,  on 
the  application  of  one  who  had  been  a  stockholder  of  the  com- 
pany from  the  beginning,  and  who  had  been  cognizant  of  the 
fraudulent  proceedings  which  resulted  in  that  fraudulent  ac- 
cumulation.59 

Bradley  was  one  of  the  attorneys  for  the  Hoboken  Land 
and  Improvement  Company,  particularly  in  the  suit  of  the 
"  Proprietors  of  the  Bridges  Over  the  Rivers  Passaic  and 
Hackensack."  The  "  Proprietors,"  etc.,  were  an  ancient  cor- 
poration; they  had  been  incorporated  in  the  year  1790  to 
build  and  conduct  toll  bridges,  and  they  claimed  a  perpetual 
monopoly  by  vested  right.  The  real  owners  of  the  "  Pro- 
prietors "  corporation  was  the  New  Jersey  Railroad  and 
Transportation  Company  which  held  more  than  nine  hundred 
and  fifty  of  the  one  thousand  shares  outstanding.  As  the 
owner  of  the  Hoboken  Land  and  Improvement  Company,  Ed- 
win A.  Stevens  had  compelled  the  New  Jersey  Railroad  and 
Transportation  Company  to  pay  him  an  annual  blackmail  sub- 
sidy of  $18,000  in  order  to  buy  him  off  from  building  a  branch 

59  See,  Case  of  John  D.  Hager  vs.  Edwin  A.  Stevens  et  al,  VI  New 
Jersey  Chancery  Reports,  374~447- 


52O  HISTORY   OF    THE    SUPREME   COURT 

railroad  on  a  franchise  that  he  held  running  from  Hoboken 
to  Newark.60 

Tiring  of  paying  this  blackmail  money,  the  New  Jersey 
Railroad  and  Transportation  Company  began  an  aggressive 
warfare.  Amid  open  charges  that  bribery  was  being  used 
both  for  and  against  the  bill,  Stevens,  on  March  8,  1860,  ob- 
tained the  enactment  of  a  law  by  the  New  Jersey  Legislature 
authorizing  him  to  connect  his  line  with  the  Morris  and  Essex 
Railroad  in  which  he  held  a  large  proprietorship.61  Then  the 
"  Proprietors,"  on  the  ground  of  their  holding  an  exclusive 
franchise,  applied  for  an  injunction  restraining  the  building 
of  Stevens'  road.  Chancellor  Green  refused  to  grant  the  in- 
junction.62 

In  the  foregoing  case,  Bradley  successfully  argued  against 
the  claims  of  monopoly  of  franchise.  But  two  years  later, 
in  another  case,  we  find  him  arguing  as  strongly  for  a  similar 
monopoly.  He  and  J.  P.  Stockton  appeared  in  chancery  to 
ask  for  a  preliminary  injunction  in  favor  of  the  Delaware  and 
Raritan  Canal  Company  and  the  Camden  and  Amboy  Rail- 
road and  Transportation  Company  restraining  the  Camden 
and  Atlantic  Railroad  Company,  etc.,  from  constructing  a 
continuous  line  between  the  cities  of  New  York  and  Philadel- 
phia, and  prohibiting  any  competition  with  the  complainant's 
railroads. 

00  Said  the  financial  column  of  the  New  York  Times,  February  27, 
1860,  of  Stevens :  ".  .  .  The  germ  of  the  quarrel  between  that 
gentleman  and  the  New  Jersey  Transportation  people  seems  to  have 
been  the  stoppage  by  the  latter  of  a  subsidy  of  $18,000  a  year  to  Mr. 
Stevens  (or  the  Hoboken  Improvement  Company)  to  quiet  or  in  satis- 
faction for  the  time  being  of  his  right  to  demand  a  branch  line  to  the 
Hoboken  Ferry,"  etc.,  etc. 

61  Assemblyman    Slaight,    of    Hudson    County,    charged,   on    May    I, 
1860,  that  an  offer  of  bribery  had  been  made  to  him  to  vote  for  Stevens' 
bill,  and  Assemblyman  Peckham,  of  the  same  county,  declared  that  he 
had  been  offered  $3,000  to  oppose  the  bill. 

62  See,  Case  of  "  Proprietors,"  etc.,  vs.  The  Hoboken  Land  and  Im- 
provement Company,  XIII  New  Jersey  Equity  Reports,  81,  and  Ibid., 
5o3-5.6i.     In  both  cases  Bradley  was  one  of  Stevens'  attorneys,  as  well 
as  being  associated  with  him  as  a  director. 


UNDER    CHIEF   JUSTICE    CHASE  521 

Bradley  Argues  for  Railroad  Monopoly. 

This  injunction  was  asked  for  on  the  ground  that  legislative 
acts  had  been  passed  in  1832  and  1854  prohibiting,  for  a  cer- 
tain period,  the  building  of  competing  railroads  except  by 
consent  of  the  railroad  now  represented  by  Bradley.  The 
plea  set  up  by  Bradley  did  not  claim  that  the  railroads  he 
was  proceeding  against  would  by  the  construction  they  were 
planning  violate  those  acts.  He  could  not  validly  make  such 
a  claim,  inasmuch  as  no  through  line  was  being  constructed. 
But  he  contended  that  a  through  route,  which  would  compete 
in  business,  would  be  virtually  made  up  partly  of  railroad 
line  and  partly  of  steamboats.  On  the  ground  that  the  acts 
cited  did  not  refer  to  steamboat  lines,  Chancellor  Green  re- 
fused his  application  for  an  injunction.63 

Bradley  appealed  to  the  New  Jersey  Court  of  Errors  and 
Appeals  on  which  bench  sat  such  former  notorious  railroad 
attorneys  as  Beasley  and  Zabriskie.  Here  Bradley  obtained  a 
modification  of  Chancellor  Green's  decision ;  the  two  defendant 
corporations  were  enjoined  from  building  such  sections  of 
railroad  as  would  form  a  link  between  New  York  and  Phila- 
delphia.64 To  Bradley's  long  continued  legal  efforts  was  due, 
in  great  part,  the  power  of  the  railroad  monopoly  in  New 
Jersey  to  extort  exorbitant  railroad  rates.  These  great  profits 
went  to  enrich  Bradley,  for  he  was  a  stockholder  and  director 
as  well  as  counsel. 

How  large  these  profits  were,  and  the  basis  of  them,  may  be 
judged  from  statements  in  the  suit  of  J.  S.  Black,  former 
Chief  Justice  of  the  Supreme  Court  of  Pennsylvania.  As  a 
dissatisfied  stockholder,  Black  filed  an  action,  June  23,  1871, 
for  an  injunction  restraining  the  proposed  lease,  for  999  years, 
of  the  Delaware  and  Raritan  Canal  Company,  the  Camden 
and  Amboy  Railroad,  and  the  New  Jersey  Railroad  and 

03  XV  New  Jersey  Equity  Reports,  19.     (May,  1862.) 

«4  XVIII  New  Jersey  Equity  Reports,  546-575.     (November,  1867.) 


522  HISTORY   OF   THE    SUPREME   COURT 

Transportation  Company  (commonly  called  the  United  Rail- 
way Companies  of  New  Jersey)  to  the  Pennsylvania  Railroad 
Company. 

The  answer  of  the  United  Railways  admitted  that  the  actual 
value  of  their  properties  was  $50,000,000.  But  Judge  Black 
estimated  the  value  at  $90,000,000.  According  to  Black,  the 
average  annual  dividends  of  the  Delaware  and  Raritan  Canal 
Company  and  of  the  Camden  and  Amboy  Railroad,  from  1833 
to  1871,  were  about  12.20  per  cent.  This,  Black  set  forth, 
was  partly  because  of  the  small  capital  and  the  large  bonded 
debt  drawing  only  five  per  cent,  interest,  and  partly  because 
the  companies  "  had  the  monopoly  of  the  transportation  of 
passengers  and  merchandise  between  New  York  and  Phila- 
delphia across  the  State  of  New  Jersey."  Black  contended 
that  when  the  lease  was  made  the  United  Railways  stock  was 
indirectly  watered  to  the  extent  of  $5,250,000.  Anticipating 
legal  trouble,  equivocal  laws  had  been  lobbied  through  the 
legislatures  of  both  Pennsylvania  and  New  Jersey,  in  1870; 
under  these  Chancellor  Zabriskie  denied  Black's  application 
and  held  that  the  lease  was  valid.65 

Bradley 's  corporation  practice  was  extremely  large  and 
varied.  He  represented  the  New  Jersey  Zinc  Company,  the 
Morris  County  Bank,  the  Newark  Lime  and  Cement  Com- 
pany, the  Morris  Canal  and  Banking  Company,  the  May's 
Landing  Water  Power  Company  and  many  other  corpora- 
tions.66 From  1857  to  1863  he  was  actuary  of  the  Mutual 
Benefit  Insurance  Company  of  Newark ;  he  was  president  of 
the  New  Jersey  Mutual  Life  Insurance  Company  and  he  was 
a  director  in  various  financial  institutions.  In  the  biography 
of  Bradley,  edited  by  his  son,  we  are  told  that  "  the  Prudential 
Insurance  Company's  magnificent  structure  [in  Newark]  is 

65  XXII  New  Jersey  Equity  Reports,  130-430. 

6°  See,  Vols.  XIII,  XIV,  XV,  XVII,  XIX,  etc.,  New  Jersey  Equity 
Reports,  pp.  (respectively)  322,  419,  190,  65,  385,  etc.,  etc. 


UNDER   CHIEF   JUSTICE    CHASE  523 

erected  on  land  owned  by  Judge  Bradley  for  many  years,  and 
sold  to  it  three  years  before  his  death."  67 


Certain  of  Strong  and  Bradley. 

"  It  was  alleged  and  not  denied,"  says  Schuckers  of  the  ap- 
pointment of  Strong  and  Bradley  to  the  Supreme  Court  of  the 
United  States,  "  that  when  Messrs.  Strong  and  Bradley  were 
made  members  of  the  court  they  were  both  interested  as  share- 
holders in  the  Camden  and  Amboy  Railroad  Company.  It 
was  alleged  that  one  or  both  of  these  gentlemen  had  formerly 
been  employed  as  law  counsel  by  that  company,  and  as  such 
counsel  had  given  opinions  affirming  the  legal  tender  to  be 
constitutional.  It  was  known,  too,  that  the  Camden  and  Am- 
boy Company  had,  in  paying  the  interest  upon  their  bonds 
subsequent  to  the  decision  in  Hepburn  vs.  Griswold,  made  a 
reservation  looking  to  a  reversal  of  the  judgment  in  that 
case."  68 

According  to  "  Poor's  Railroad  Manual,"  Bradley,  Edwin 
A.  Stevens  and  others  were  directors  of  the  Camden  and  Am- 
boy Railroad,  and  Bradley,  Stevens,  etc.,  were  directors  of 
the  Morris  and  Essex  Railroad  Company.00  In  the  eulogistic 
biography  of  Bradley  to  which  we  have  already  referred,  we 
are  informed  that  when  Bradley  went  to  Washington  as  an 
Associate  Justice  of  the  Supreme  Court  he  bought  a  large 
residence  at  No.  201  I  Street,  built  by  Stephen  A.  Douglas, 
and  that  "  many  old  friends  surrounded  him  "  in  Washing- 
ton.70 John  P.  Stockton  and  Frederick  T.  Frelinghuysen 
were  there  as  United  States  Senators  from  New  Jersey ;  both 

07 "  Miscellaneous  Writings  of  the  Late  Hon.  Joseph  P.  Bradley, 
etc.,  Edited  and  Compiled  by  his  son,  Charles  Bradley,"  Newark,  1901 : 

P-  5- 

08  "Life  of  S.  P.  Chase"  (1874)  :  P-  261. 

09  See,  "  Poor's  Railroad  Manual  "  for  1868-1869 :  pp.  383  and  386. 

70 "  Miscellaneous  Writings  of  the  Late  Hon.  Joseph  P.  Bradley," 
etc.,  p.  3. 


524  HISTORY   OF    THE    SUPREME    COURT 

were  old  friends  and  associates  of  Bradley ;  Stockton  was  a 
railroad  attorney,  and  Frelinghuysen  was  long  a  director  of 
the  Central  Railroad  of  New  Jersey.71  The  biography  in 
question  goes  on  to  tell  that  other  of  Bradley 's  old  friends  now 
in  Washington  were  George  F.  Robeson,  Secretary  of  the 
Navy,  and  John  Kean,  later  Vice-President  of  the  Jersey  Cen- 
tral Railroad.72 


The  Supreme  Court  Reverses  Itself. 

Now  that  the  Supreme  Court  of  the  United  States  was 
packed,73  or  to  put  it  more  felicitously,  reconstituted  so  as  to 
reverse  Chase's  Legal-Tender  decision,  Attorney-General  Hoar 
moved  for  a  rehearing  of  the  case.  This  motion  was  granted ; 
and,  in  December,  1870,  the  Supreme  Court,  by  a  vote  of  five 
to  four  (Associate  Justice  Strong  writing  the  majority  opin- 
ion) reversed  the  previous  decision,  and  declared  the  Legal 
Tender  Act  constitutional.74 

From  this  time  on,  one  decision  after  another,  not  always, 
but  almost  invariably,  favorable  to  the  railroad  interests  fol- 
lowed. The  State  of  Pennsylvania  had  passed  an  act  im- 
posing a  tax  on  all  freight  within  the  state.  The  railroads 
refused  to  pay  this  tax  on  the  ground  of  its  being  unconstitu- 
tional. In  December,  1872,  Justice  Strong,  delivering  the 
Supreme  Court's  majority  opinion,  declared  the  act  unconsti- 
tutional.75 Another  Pennsylvania  law  imposed  a  tax  on  gross 
receipts  of  railroad,  canal,  and  transportation  cornpanies;  in 

71  "  Poor's  Railroad  Manual"  for  1880;  p.  234. 
« Ibid. 

73  This  packing  of  the  Supreme  Court  caused  such  a  long-continuing 
scandal,  that,  as  late  as  1881,  Justice  Strong  felt  called  upon  to  write 
an  article  for  the  North  American  Review  (May,  1881,  Vol.  CXXXII: 
P-  437)   defending  the  increase  of  members  as  made  necessary  by  the 
great  pressure  of  cases  for  consideration. 

74  XII  Wallace's  Reports,  457-681.     Chief  Justice  Chase  and  Justices 
C'ifford,  Field  and  Nelson  dissented. 

75  Case  of  "  State  Freight  Tax,"  XV  Wallace,  237.     Justices  Swayne 
and  Davis  dissented, 


UNDER   CHIEF  JUSTICE   CHASE  52$ 

this  case,  Justice  Strong,  as  the  mouthpiece  of  the  majority, 
declared  that  the  law  was  not  invalid.76  Thereupon  the  Penn- 
sylvania Railroad  corrupted  the  Legislature  to  repeal  the  act.77 
Another  measure  passed  by  the  Pennsylvania  Legislature  — 
for  the  Anti-Monopoly  movement  was  then  politically  strong, 
and  it  was  considered  politic  to  give  it  deferential  sops  —  was 
an  act  taxing  non-resident  bondholders.  By  a  vote  of  five 
to  four  (Justice  Field  writing  the  majority  opinion)  this  act 
was  declared  unconstitutional  by  the  Supreme  Court  in  Decem- 
ber, 1 872.™ 

Meanwhile,  during  this  period,  the  Supreme  Court,  al- 
though rejecting  some  California  land  claims,  had  confirmed 
many  others.  Not  a  few  were  of  so  questionable,  if  not  visi- 
bly fraudulent,  a  nature,  that  members  of  the  Supreme  Court 
themselves  vigorously  denounced  the  majority  opinions  con- 
firming them,  as  in  the  case  of  Hornsby  vs.  the  United  States. 
Upon  the  pretense  that  acting  Governor  Pio  Pico,  on  May, 
1846,  had  granted  40,000  acres  of  land  to  Jose  Roland,  from 
whom  he  (Hornsby)  claimed  to  have  bought  it,  Hornsby,  in 
1869,  obtained  a  confirmation  of  his  title  from  the  Supreme 
Court  of  the  United  States.  In  a  severe  dissenting  opinion, 
Justices  Davis,  Clifford  and  Swayne  pointed  out  that  the  very 
records  of  the  case  showed  that  the  grant,  if  made,  was  il- 
legally conferred.  "  No  possession  of  any  kind,"  they  went 

70 "  State  Tax  on  Railway  Gross  Receipts,"  XV  Wallace,  284.  Jus- 
tices Miller,  Field  and  Hunt  dissented.  Associate  Justice  Ward  Hunt 
had  been  appointed  that  year  (1872)  to  succeed  Justice  Nelson.  Jus- 
tice Hunt  had  practiced  at  Utica,  New  York,  had  been  Mayor  of  that 
city,  and  in  1865  he  had  been  elected  to  the  New  York  Court  of  Ap- 
peals. He  was  identified  with  the  railroad  interests.  (See,  "Poor's 
Railroad  Manual,"  for  1869-70.)  At  the  time  of  his  appointment  to 
the  Supreme  Court  he  was  sixty-two  years  old. 

77  So  it  was  charged  by  Judge  Black  in  his  argument  on  railroad 
monopoly  before  the  Pa.  Senate  Judiciary  Committee,  and  before  the 
Pa.   Constitutional   Convention  of   1873.    Judge  Black  dealt  at  length 
with  the  corruption  carried  on  by  the  Pennsylvania  and  the  Reading 
railroad  companies.—  See,  "  Essays  and  Speeches  of  J.  S.  Black  "  (pp. 
99,  176,  etc.)  published  at  the  time. 

78  XV  Wallace,  300.    Justices  Davis,  Clifford,  Miller  and  Hunt  dis- 
sented. 


526  HISTORY   OF   THE    SUPREME    COURT 

on,  "  is  proved  in  this  case,  and  the  authenticity  of  this  grant, 
covering  an  area  of  over  forty  thousand  acres  of  land,  de- 
pends upon  the  testimony  of  a  single  witness,  unsupported 
by  any  proof,  except  the  imperfect  or  mutilated  expedients, 
found  among  a  mass  of  loose  papers  on  the  floor  of  one  of  the 
rooms  of  the  custom  house  at  Monterey  after  the  Mexican  offi- 
cials had  fled  on  the  approach  of  our  forces."  78 


Death  of  Chief  Justice  Chase. 

Chief  Justice  Chase  died  on  May  7,  1873.  In  his  laudatory 
biography,  Schuckers  asserts  that  Chase's  fortune  was  not 
more  than  $100,000.  But  Chase's  will  dated  November  19, 
1870,  and  filed  with  the  Register  of  Wills  at  Washington,  on 
May  21,  1873,  showed  a  total  of  real  and  personal  property 
appraised  at  $250,000,  of  which  $150,000  was  estimated  to  be 
in  real  property.  If  we  are  to  accept  the  statement  of  Schuck- 
ers, his  confidant  and  biographer,  that  his  fortune,  in  1861, 
amounted  to  $65,000,  then  Chase  must  have  gathered  the  dif- 
ference —  $185,000  —  during  the  twelve  years  he  was  Secre- 
tary of  the  Treasury,  and  Chief  Justice  of  the  Supreme  Court 
of  the  United  States.  No  doubt,  part  of  this  added  wealth 
could  be  attributed  to  the  accumulating  increment  on  his  real 
estate.80 

79  X  Wallace's  Reports,  224-245. 

80  This  interpolation  of  a  description  of  the  Supreme  Court  at  the 
time  will  be  of  interest : 

"  At  eleven  o'clock  in  the  morning,  the  door  back  of  the  judges' 
platform  is  thrown  open,  the  Marshall  of  the  Court  enters,  walking 
backward,  with  his  gaze  fastened  upon  the  door.  Upon  reaching  the 
center  of  the  chamber,  he  pauses,  and  cries  in  a  loud  voice : 

" '  The  Honorable,  the  Judges  of  the  Supreme  Court  of  the  United 
States.' 

"  All  present  in  the  chamber  immediately  rise  to  their  feet,  and 
remain  standing  respectfully.  Then,  through  the  open  door,  headed  by 
the  Chief  Justice,  enter  the  members  of  the  Court,  one  by  one,  in 
their  large,  flowing  robes  of  black  silk.  There  is  something  very  at- 
tractive about  these  men,  nearly  all  of  whom  have  passed  into  the 
closing  years  of  life.  They  ascend  the  platform,  range  themselves  in 


UNDER    CHIEF   JUSTICE    CHASE  527 

When  Chief  Justices  or  Associate  Justices  of  the  Supreme 
Court  of  the  United  States  died,  the  newspapers  and  peri- 
odicals and  the  publications  of  the  legal  profession  almost 
invariably  contained  effusive  laudations.  It  was  remarkable, 
therefore,  that  only  a  few  months  after  Chase's  death,  the 
periodical  Bench  and  Bar,  representing  the  opinion  of  the  legal 
profession,  should  make  severe  comments  upon  Chief  Justice 
Chase's  political  activities.  After  stating  that  there  was  no 
intention  of  disparaging  Chase's  memory  or  derogating  from 
his  deeds,  the  article  in  question,  published  in  the  October, 
1873,  issue  of  Bench  and  Bar,  spoke  of  him  as  exhibiting  "  the 
spectacle  of  a  standing  candidate  "for  the  Presidency.  The 
magnitude  and  dignity  of  the  office  of  Chief  Justice  sank 
before  a  restless  ambition  for  political  power  and  place.  It 
was  not  possible  that  this  should  not  meet  the  disapproving 
opinion  of  the  public,  and  especially  of  the  Bar  of  the  United 
States.  .  .  ." 

front  of  their  seats,  and  the  Chief  Justice  makes  a  sign  to  the  '  Crier,1 
who  immediately  makes  the  following  proclamation : 

"  '  O  yea !  O  yea !  O  yea !  All  persons  having  business  before  the 
Honorable,  the  Judges  of  the  Supreme  Court  of  the  United  States,  are 
admonished  to  draw  near,  and  give  their  attendance,  for  the  Court  is 
now  in  session.  God  save  the  United  States,  and  this  Honorable 
Court ! ' " 

"  The  Judges  and  other  persons  take  their  seats,  and  the  business  of 
the  day  begins."  Dr.  John  B.  Ellis'  "The  Sights  and  Secrets  of  the 
National  Capital,"  1869,  p.  258. 


CHAPTER  XIII 
THE   SUPREME    COURT    UNDER    CHIEF   JUSTICE    WAITE 

Recapitulating,  we  have  seen  that  some  years  before  Chief 
Justice  Chase's  death,  the  railroad  power  had  begun  a  sys- 
tematic campaign  to  put  its  avowed  representatives  upon  the 
Supreme  Court  Bench.  In  the  State  courts  the  transformation 
had  already  been  accomplished;  there  was  hardly  an  inferior 
court  which  was  not  composed  of  railroad  judges,  or  of  men 
susceptible  to  railroad  influences.  With  the  Supreme  Court 
of  the  United  States,  the  process  was  a  little  slower,  but  none 
the  less  sure.  The  delay  was  unavoidable  because  the  Jus- 
tices, appointed  for  life,  often  outlived  the  period  and  the 
class  section  originally  represented  by  them.  Survivals,  or 
rather  relics,  of  a  bygone,  outworn  era,  aged  and  usually  in- 
firm, they  all  could  not  be  expected  to  respond  readily  to  the 
demands  of  later  economic  interests.  Some  of  them  could 
hardly  realize  that  the  railroad  corporations  which  they  had 
seen  come  forward  a  few  years  before  as  supplicants  for  pub- 
lic aid  were  now  the  paramount  capitalist  power,  arrogating 
the  larger  control  of  Government. 

As  fast  as  these  hoary  relics  passed  away,  railroad  attor- 
neys were  appointed  to  succeed  them.  And  when,  in  1874, 
Morrison  I.  Waite  was  chosen  as  Chase's  successor  as  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  it  was  evi- 
dent even  to  the  most  superficial  observer  that  the  new  regime 
had  become  a  dominant  factor,  and  that  the  railroad  corpora- 
tions were  the  sovereign  power. 

528 


UNDER   CHIEF   JUSTICE    WAITE  529 

Williams  and  Gushing  Compelled  to  Retire. 

Like  Chief  Justices  Jay,  Marshall,  Taney  and  Chase,  Waite 
did  not  have  any  judicial  experience  when  appointed  to  pre- 
side over  the  Supreme  Court.  Unlike  his  predecessors,  he 
had  not  even  filled  a  single  political  office  of  national  note. 
So  far  as  public  reputation  was  concerned,  he  was  a  total 
nonentity;  the  public  had  never  heard  of  him.  But  to  the 
railroad  politicians  surrounding  President  Grant,  and  filling  the 
Senate,  he  was  well  known  for  his  ingrained  conservative  ten- 
dencies and  affiliations. 

At  first,  Grant  had  selected  George  H.  Williams  for  the 
post.  Williams  had  been  a  judge  in  Iowa;  a  presidential 
elector  in  1852;  Chief  Justice  of  Oregon  Territory;  a  United 
States  Senator  from  Oregon  in  1862-1871 ;  and  Attorney  Gen- 
eral of  the  United  States  from  1872  to  1875.  The  Bar  Asso- 
ciation of  New  York  protested  against  the  nomination ;  Wil- 
liams, it  said,  was  "  wanting  in  those  qualifications  of  intellect, 
experience  and  reputation  which  are  indispensable  to  uphold 
the  dignity  of  the  highest  national  court."  x  Williams'  nom- 
ination was  withdrawn  at  his  own  request. 

But  when  Grant  then  nominated  Caleb  Cushing  for  the 
Chief  Justiceship,  public  denunciation  was  even  more  severe. 
That  Cushing  was  seared  with  corruption  was  beyond  doubt. 
One  of  his  transactions  we  have  discussed  in  a  previous  chap- 
ter ;  how  he  had  been  counsel  for  the  Peter's  colony  contract 
grant,  and  how  later,  when  Attorney  General  of  the  United 
States,  he  had  given  an  opinion  in  favor  of  that  grant  at  the 
very  time  Texas  was  seeking  to  put  a  stop  to  the  fraudulent 
operations  of  its  promoters.  We  have  also  described  (Chap- 
ter X)  how  General  Sam  Houston,  in  1857,  categorically  ex- 
posed Cushing's  connection  with  the  Peter's  colony  grant. 

Of  the  numerous  strictures  made  at  the  time  upon  Cush- 
ing's nomination  as  Chief  Justice,  we  shall  confine  ourselves  to 

*  Rhodes'  "  History  of  the  United  States,  1850-1877,"  Vol.  VII :  27. 


530  HISTORY   OF   THE   SUPREME   COURT 

quoting  but  one,  that  of  the  Springfield  Republican,  perhaps 
the  most  influential,  and  certainly  the  most  accredited,  news- 
paper in  his  native  state.  "  His  reputation,"  it  said,  "  is  that 
of  a  man  who  has.  never  allowed  principle  or  conscience  to 
stand  in  the  way  of  gain.  .  .  .  He  is  not  an  immoral,  but 
rather  an  unmoral,  man;  he  has  not  become  demoralized;  he 
never  was  moralized."  2 

The  onslaught  upon  Cushing's  probity  was  so  effective,  and 
so  strongly  backed  with  facts,  that  his  nomination  was  with- 
drawn. Notwithstanding,  Gushing  held  Grant's  ear;  and  in 
retiring  Gushing  was,  it  was  understood,  one  of  those  propos- 
ing to  Grant  the  appointment  of  Waite  as  Chief  Justice.  He 
was,  indeed,  Waite's  sponsor.3  Gushing  had  an  extensive  rail- 
road practice;  he  was,  after  the  Civil  War,  an  attorney  for 
Russell  Sage's  La  Crosse  and  Milwaukee  Railroad  Company, 
which,  as  we  have  narrated,  had  bribed  an  act  through  the 
Wisconsin  Legislature,  in  1856,  with  $800,000  in  bribes,  giving 
it  a  land  grant  then  valued  at  $18,000,000.  He  was  also  attor- 
ney for  Sage's  Milwaukee  and  Minnesota  Railroad  Company 
and  for  other  railroads  of  similar  fraudulent  origin  now  in- 
corporated in  the  Chicago,  Milwaukee  and  St.  Paul  Rail- 
road.4 

2  Merriam's  "Life  and  Times  of  Samuel  Bowles,"  Vol.  II:  231. 

3  Gushing  was  then  appointed  Minister  to  Spain,  serving  from  1874 
to  1877.    He,  Williams  and  Waite  had  been  counsel   for  the  United 
States  before  the  Geneva  tribunal  of  arbitration,  in  1871-72. 

4  VI  Wallace's  Reports,  742,  750,  751,  etc.     Russell  Sage  was  presi- 
dent   of    the    Milwaukee    and    Minnesota    Railroad.     For    the    specific 
account  of  the  enormous  frauds  committed  by  the  men  controlling  those 
railroads  in  issuing  fraudulent  bflnds  to  themselves  and  in  profiting 
from  fraudulent  foreclosure  sales,  see,  "  History  of  the  Great  American 
Fortunes,"  Vol.  Ill,  Chapter  I,  citing  from  legislative  and  court  records. 
Sage  was  allied  with  Jay  Gould  in  many  railroad  and  telegraph  com- 
pany operations.    At  the  time  that  Russell  Sage  was  president  of  the 
Pacific  Mail  Steamship  Company,  in  1872-1873,  that  company  had  bribed 
(as  we  have  already  narrated,  through  Congress,  by  means  of  $1,000,000 
in  bribes,  an  act  giving  it  an  additional  mail  subsidy  of  $500,000  a  year 
for  ten  years. 


UNDER   CHIEF   JUSTICE   WAITE  53! 

Waite's  Record  as  a  Lawyer. 

The  son  of  a  Chief  Justice  of  Connecticut,  Waite  was  born 
at  Lyme,  in  that  State,  on  November  29,  1816.  After  gradu- 
ating from  Yale,  in  1837,  he  had  settled  in  Toledo,  Ohio. 
There  he  had  become  associated  in  law  partnership  with  Sam- 
uel R.  Young,  and  later  with  his  brother,  Richard  Waite. 
Their  cases,  for  twenty-five  years,  were  an  unbroken  succes- 
sion of  lucrative  appearances  for  corporations  of  one  kind 
or  another.  In  the  decades  before  and  after  the  Civil  War, 
Morrison  R.  Waite  represented  the  Bank  of  Toledo,  the  State 
Bank  of  Ohio,  the  Toledo  Insurance  Company  and  similar  in- 
stitutions.5 He  and  his  partner,  Young,  were  receivers  for 
the  Commercial  Bank  of  Toledo.6  But  the  greater  part  of 
Waite's  practice  was  as  attorney  for  railroad  corporations. 
He  was  counsel  for  the  Southern  Michigan  Railroad  Com- 
pany; for  the  Northern  Indiana  Railroad  Company;  for  the 
Cleveland  and  Toledo  Railroad  Company ;  for  the  Lake  Shore 
and  Michigan  Southern  Railroad  Company,  and  for  other 
railroad  corporations.7 

During  twenty-five  years  of  practice,  there  was  scarcely  a 
case  in  which  Waite  appeared  in  which  he  did  not  advocate 
the  interests  of  some  powerful  individual  or  corporation. 
Charles  Butler,  one  of  Toledo's  richest  landholders,  applied 
through  Waite,  in  January,  1853,  for  a  permanent  injunction 
restraining  the  City  of  Toledo  from  collecting  an  assessment 
for  the  cost  of  grading  streets.  Waite  argued  that  the  leg- 
islative act  authorizing  this  assessment  was  retroactive  and 
an  impairment  of  vested  rights,  and  that  the  fund  for  the 
grading  work  was  being  misapplied  and  wasted.  Judge 

6  See,  I  Ohio  State  Reports,  628;  VIII  Ibid.,  468;  XII  Ibid.,  605,  etc. 
0  See,  Case  of  Platt  vs.  Eggleston,  XX  Ohio  State  Reports,  417. 
*  See,  X  Ohio  State  Reports,  272;  Ibid.,  163;  XXII  Ibid.,  575;  XXV 
Michigan  Reports,  329,  etc.,  etc. 


532  HISTORY   OF   THE    SUPREME   COURT 

Brinckerhoff,  in  the  Ohio  Supreme  Court,  denied  that  any 
vested  right  was  being  impaired,  and  dissolved  the  injunc- 
tion.8 

In  cases  affecting  the  interests  of  banks  or  railroads,  Waite 
was  more  fortunate.  Of  the  successive  judges  of  the  Ohio 
Supreme  Court,  there  was  hardly  one  who  had  not  been,  or 
who  did  not  become,  a  corporation  attorney.  Allan  G.  Thur- 
man,  for  some  years  Chief  Justice  of  that  court,  and  subse- 
quently a  United  States  Senator  and  a  candidate  for  Vice- 
President  of  the  United  States,  was  counsel  for  the  Valley 
Bank,  for  the  Ohio  Life  Insurance  and  Trust  Company  (which 
failed  under  disastrous  circumstances,  in  1857)  ;  and  he  was 
counsel  for  a  number  of  other  corporations.  Judge  Swan  had 
been  counsel  for  the  State  Bank  of  Ohio.  Milton  Sutliff, 
Chief  Justice  of  the  Ohio  Supreme  Court,  in  1861,  was  so  in- 
different to  public  criticism  that  he  did  not  forbear  bringing 
a  very  remarkable  suit  in  which  he  demanded  his  full  share 
of  watered  railroad  stock.  He  set  forth  that  he  was  the  owner 
of  Cleveland  and  Mahoning  Railroad  seven-per  cent.-bonds, 
not  specifying,  however,  how  he  obtained  them.  These  bonds 
he  had  elected  to  convert  into  stock.  Subsequently,  he 
averred,  the  company  had  watered  the  stock  to  the  extent  of 
forty-seven  per  cent.,  and  had  given  him  this  depreciated  stock 
in  exchange  for  his  bonds.  He  sued  to  get  an  amount  of  stock 
equaling  the  value  of  his  bonds,  plus  forty-seven  per  cent,  in- 
terest; but  when  the  case  was  decided,  in  1873,  he  was  de- 
feated.9 As  for  Judge  Birchard,  he  had  been  counsel  for  a 
variety  of  corporations,  and  after  leaving  the  bench  resumed 
corporation  practice. 

8  Case  of  Charles  Butler  vs.  City  of  Toledo,  V  Ohio  State  Reports, 
225. 

9  Sutliff    vs.    Cleveland    and    Mahoning    Railroad    Company,    XXIV 
Ohio  State  Reports,  147-150.     Sutliff  was  long  a  close  personal  friend 
of  Chief  Justice  Chase;  they  corresponded   regularly  and  intimately, 
Schuckers  says. 


UNDER    CHIEF    JUSTICE    WAITE  533 

The  Case  of  Veronica  Muhl. 

Most  of  Waite's  cases  dealt  with  some  phase  or  other  of 
vested  rights,  in  the  pleading  of  which  he  was  recognized  as 
an  expert,  and  in  every  hoary  precedent  concerning  which  he 
was  deeply  read.  These  cases,  blanketed  as  they  were  in  ab- 
stract technicalities,  the  reading  public  could  not  follow  very 
closely  even  when  they  were  stated  simply  in  the  brief  news- 
paper reports.  But  there  was  one  case  argued  before  the  Ohio 
Supreme  Court,  in  1859,  which  was  clear  enough ;  it  was  so 
very  plain  that  the  workers  of  the  railroad  quarter  of  Toledo 
had  no  difficulty  in  keeping  track  of  its  aspects,  and  no  hesita- 
tion at  expressing  their  indignation  over  the  particular  defense 
advanced  by  Waite. 

Veronica  Muhl,  a  Swiss  woman,  had  been  killed  in  Toledo, 
on  July  19,  1854,  by  being  run  over  on  the  street  by  a  loco- 
motive and  a  train  of  cars,  going  at  a  speed  of  more  than 
twenty-five  miles  an  hour.  The  speed  was  proved  and  it  was 
also  proved  that  no  warning  bell  had  been  rung.  A  city  ordi- 
nance prohibited,  in  that  part  of  Toledo,  a  speed  of  more  than 
twenty-five  miles  an  hour,  and  forbade  any  running  of  trains 
at  all  without  the  constant  ringing  of  the  locomotive  bell  so  as 
to  give  ample  warning  of  danger. 

Veronica  Muhl  left  a  two-year  old  boy ;  and  suit  was  brought 
in  his  behalf  for  $5,000  damages.  The  Southern  Michigan 
Railroad  Company  entered  a  general  denial.  In  July,  1855,  the 
jury  in  the  Court  of  Common  Pleas  returned  a  verdict  in  favor 
of  the  orphan.  The  railroad  then  applied  to  the  district  court, 
amending  its  answer,  and  not  denying,  in  effect,  its  own  culpa- 
bility. What,  then,  was  the  plea  put  forward  by  Waite,  as 
attorney  for  the  railroad  ?  A  very  extraordinary  one ;  he  con- 
centrated his  whole  argument  upon  the  point  that  the  plain- 
tiff's counsel  must  prove  that  Veronica's  son  was  legitimate, 
and  he  moved  that  the  action  must  be  non-suited  on  the  ground 


534  HISTORY   OF   THE   SUPREME   COURT 

that  the  boy  was  an  illegitimate  child,  and,  therefore,  not  next 
of  kin  within  the  meaning  of  the  statute  governing  the  case. 
The  judge  in  the  district  court  non-suited  the  case. 

The  orphan's  lawyer  appealed  the  case  to  the  Supreme  Court 
of  Ohio.  In  the  meantime,  the  news  of  the  railroad's  peculiar 
defense  in  the  case  had  got  abroad.  That  it  was  generally  re- 
ceived with  execration  is  putting  the  fact  mildly.  The  mother 
had  been  killed  by  the  railroad  company  running  its  trains  in 
violation  of  the  law ;  her  boy  had  been  left  a  helpless  orphan. 
To  cheat  him  out  of  the  very  modest  damages  awarded  him 
by  the  lower  court,  the  railroad's  attorneys,  Morrison  I.  Waite 
and  his  brother  Richard,  had  no  scruples  in  heaping  contumely 
upon  the  name  of  the  dead  woman,  and  covering  her  defense- 
less boy 'with  public  disgrace. 

Public  opinion  made  itself  manifest;  and  when  the  Waite 
brothers,  representing  the  Southern  Michigan  Railroad,  re- 
newed their  plea  before  the  Ohio  Supreme  Court,  in  Decem- 
ber, 1859,  the  judges  of  that  court,  railroad  attorneys  as  they 
had  been,  could  not  avoid  expressing  disgust.  Judges  Sutliff, 
Brinckerhoff,  Scott,  Peck  and  Ghoulson  concurred  with  an 
unusual  unanimity.  They  reversed  the  action  of  the  district 
court,  and  directed  that  the  child  should  get  the  awarded  dam- 
ages. 

"  It  is  difficult,"  said  Judge  Sutliff,  in  delivering  the  court's 
opinion,  "  to  perceive  upon  what  ground  the  judgment  of  non- 
suit, shown  by  the  record,  was  rendered.  When  the  de- 
fendant's counsel,  under  leave  to  amend,  had  withdrawn  all 
that  part  of  the  answer  that  denied  the  killing  of  decedent  by 
the  wrongful  carelessness  of  defendant's  servants,  in  operating 
their  locomotives,  there  remained  no  denial  of  the  right  of  ac- 
tion." The  question,  Judge  Sutliff  further  declared,  of 
whether  Veronica's  son  was  the  nearest  of  kin,  could  in  nowise 
affect  the  cause  of  action.  As  to  who  was  the  legal  beneficiary 
could  be  adjudged  after  the  action  had  been  determined. 
Nearness  or  remoteness  of  kin  on  the  part  of  the  boy,  Judge 


UNDER    CHIEF    JUSTICE    WAITE  535 

Sutliff  went  on,  did  not  depend  at  all  upon  the  circumstance  of 
his  being  born  within  or  without  lawful  wedlock.10 

Quite  incidentally,  the  judges  had  no  high  opinion  of  Waite's 
character  in  that  he  should  have  advanced  what  was  regarded 
as  so  reprehensible  a  defense,  nor  did  they  appraise  his  knowl- 
edge of  law  as  worthy  of  much  consideration. 


Waite's  Advocacy  of  Vested  Private  Rights. 

Not  a  few  of  Waite's  legal  efforts  as  an  attorney  were  at- 
tempts to  break  down  the  constitutionality  of  this  or  that 
statute  —  a  typical  enough  preparation  for  a  future  Chief 
Justice  of  the  Supreme  Court  of  the  United  States. 

In  1851  the  Ohio  Legislature  had  passed  an  act  to  tax  banks 
and  bank  stock ;  accordingly  the  City  of  Toledo  assessed  a  tax 
of  $1,957.50  on  the  Toledo  Bank.  That  bank  refused  to  pay, 
and  when  sued,  Waite  and  Young,  representing  the  bank, 
pleaded  that  the  legislative  act  was  unconstitutional.  Among 
the  precedents  cited  by  them  was  Marshall's  decision  in  the 
Dartmouth  College  case;  they  argued  that  the  charter  of  a 
private  corporation  was  a  contract  within  the  meaning  of  the 
restrictive  clause  of  the  Constitution  of  the  United  States. 

Chief  Justice  Hartley,  in  the  Ohio  Supreme  Court,  in  June, 
1853,  decided  against  the  bank,  declaring  that  the  Dartmouth 
College  decision  had  been  perverted  "  until  it  has  become,  to 
some  extent,  a  subterfuge  for  fraud  and  a  means  of  shielding 
corporations  from  responsibility  and  correction  for  the  abuse 
of  their  corporate  franchises."  The  antique  precedents  ad- 
vanced by  Waite  to  enable  his  client  to  defraud  the  city  of 
taxes,  did  not  at  all  impress  Chief  Justice  Bartley.  "  A  legal 
principle,"  he  said,  "  to  be  well  settled,  must  be  founded  upon 
sound  reason,  and  tend  to  the  purposes  of  justice."  In  the 
course  of  his  decision  he  further  stated  that  "  it  is  a  humiliating 

10  See,  Case  of  Muhl,  Administrator,  vs.  Southern  Michigan  Railroad 
Company,  X  Ohio  State  Reports,  272-277. 


536  HISTORY    OF    THE    SUPREME   COURT 

reflection  to  the  friends  of  our  republican  institutions,  that  the 
efforts  to  place  the  rights  and  property  of  corporations  upon 
a  footing  of  greater  sanctity  than  those  of  private  persons, 
have  been  resisted  with  far  greater  success  in  England  than 
they  have  been  in  this  country.  The  right  of  Parliament  to 
amend  or  repeal  the  charters  of  private  corporations  has  for 
many  years  been  undisputed."  The  property  of  every  person, 
Bartley  declared,  "  must  be  liable  to  bear  an  equal  and  just 
proportion  of  the  public  burdens.  .  .  ."  n 

Another  example  of  Waite's  activities  was  this :  As  a  mat- 
ter of  public  health,  the  City  of  Toledo  had  passed  an  ordi- 
nance requiring  owners  to  fill  up  noisome  vacant  places ;  if  they 
failed  the  city  was  to  do  it,  and  assess  the  expense  upon  the 
owners.  One  of  the  landowners  refusing  to  pay  this  assess- 
ment was  one  Ezra  Bliss.  As  Bliss'  attorneys,  the  Waite 
brothers  claimed  that  the  Ohio  health  statute  under  which  the 
city  acted,  was  unconstitutional,  in  that  it  violated  vested  pri- 
vate rights.  The  Ohio  Supreme  Court,  in  December,  1864, 
decided  that  it  was  constitutional.12 

Morrison  I.  Waite  and  Richard  Waite  were  also,  together 
with  Charles  Pratt,  the  attorneys  in  another  action  to  have  an 
Ohio  legislative  act  construed  in  favor  of  vested  private  rights. 
They  represented  Rollin  B.  Hubbard,  the  owner  of  large  flour 
mills.  These  mills  had  been  run  with  water  from  a  branch 
of  the  Wabash  and  Erie  Canal  which  had  traversed  Toledo. 
The  Ohio  Legislature,  in  1864,  had  passed  an  act  discontinuing 
that  particular  canal,  and  authorizing  its  being  reconstructed 
into  a  public  highway.  Hubbard  then  came  forward  with  a 
claim  that  in  1840  he  had  received  the  right  under  a  thirty 

11  Case  of  Toledo  Bank  vs.  John  R.  Bond  (Treasurer  of  the  City  of 
Toledo),   I   Ohio    State   Reports,  622-703.     But  we   have  described   in 
Chapter  XI  how  the  Supreme  Court  of  the  United  States,  in  1855,  de- 
clared the  Ohio  act  of  1851  unconstitutional,  and  how,  in  a  dissenting 
opinion,  Justice  Campbell  denounced  the  decision,  and  described  how 
the   corporate   money   interest   was   dominant   in   Ohio.     Chief   Justice 
Bartley  seems  to  have  been  exempt  from  that  domination. 

12  Bliss  ct  a/,  vs.  Kraus,  XVI  Ohio  State  Reports,  58. 


UNDER    CHIEF   JUSTICE    WAITE  537 

years'  lease,  renewable,  to  propel  his  mills  with  surplus 
water  not  required  for  navigation.  When,  in  1868,  the  Gov- 
ernor of  Ohio  executed  a  formal  grant  of  the  canal  to  the  City 
of  Toledo,  Hubbard  and  others  obtained  a  provisional  injunc- 
tion restraining  the  city  from  interfering  with  the  flow  of 
water.  The  injunction  was  later  dissolved,  and  the  case  in 
full  argued. 

For  Hubbard,  Morrison  I.  Waite  claimed  that  he  held  a 
vested  right;  that  the  legislative  act  was  subject  to  his  prior 
rights;  and  that  the  city  was  liable  for  all  damages  accruing 
from  the  discontinuance  of  the  water  supply.  "  The  State 
government,"  retorted  the  city's  attorneys,  "  was  not  organ- 
ized for  the  purpose  of  running  grist  mills."  The  Ohio  Su- 
preme Court,  in  December,  1871,  decided  in  favor  of  the  City 
of  Toledo.13 


Waite's  Railroad  Interests  and  Connections. 

To  ascertain  the  real  importance  of  Waite's  position  as  a 
railroad  attorney,  it  is  necessary  to  know  what  large  interests 
owned  or  controlled  these  railroads.  Samuel  M.  Young,  law 
partner  of  Morrison  I.  Waite,  was  a  director  of  the  Cleveland 
and  Toledo  Railroad.14  This  railroad  belonged  to  the  Van- 
derbilt  system ;  William  H.  Vanderbilt  was  one  of  its  direc- 
tors; in  turn  it  was  leased  to  the  Cleveland,  Painesville  and 
Ashtabula  Railroad,  one  of  the  directors  of  which  was  Henry 
B.  Payne,  later  so  powerful  a  magnate  as  treasurer  of  the 
Standard  Oil  Company,  and  such  a  sinister  figure  in  the  bribery 
of  Ohio  legislators  and  officials.15 

13  Hubbard  vs.  City  of  Toledo,  XXI  Ohio  State  Reports,  379-401. 

14 "Poor's  Railroad  Manual,"  1868-1869:  163,  and  Ibid.,  1869-70: 
pp.  184  and  362. 

15  After  Payne  was  elected  to  the  United  .States  Senate,  in  1884,  a 
subsequent  Ohio  Legislature  petitioned  the  United  States  Senate  for 
an  investigation.  Upon  completing  an  examination  of  sixty-four  wit- 
nesses, the  Ohio  House  of  Representatives  declared  that  Payne's  seat 
in  the  United  States  Senate  "  was  purchased  by  the  corrupt  use  of 


538  HISTORY   OF   THE    SUPREME   COURT 

As  for  Morrison  I.  Waite,  he  was  one  of  the  directors  of  the 
Dayton  and  Michigan  Railroad,  and  for  a  time  was  its  vice- 
president.16  This  railroad  had  been  leased,  in  1863,  to  the 
Cincinnati,  Hamilton  and  Dayton  Railroad.  The  president  of 
the  Dayton  and  Michigan  Railroad,  S.  S.  L'Hommedieu,  was 
also  president  of  the  Cincinnati,  Richmond  and  Chicago  Rail- 
road, and  was  also  "  interested "  in  the  Kentucky  Central 
Railroad.  One  of  Waite's  sons  was  superintendent  of  the 
Cincinnati  and  Muskingum  Railroad  during  a  great  part  of 
the  time  that  Waite  was  Chief  Justice  of  the  Supreme  Court 
of  the  United  States. 

Only  twice  had  Waite  ever  held  any  public  office :  in 
1849,  when  he  had  been  elected  to  the  Ohio  Legislature,  and 
in  1873,  when  he  was  president  of  the  Ohio  Constitutional  Con- 
vention. He  had  been  defeated  for  delegate  to  the  State  Con- 
stitutional Convention  in  1850,  and  had  not  succeeded  in  his 
candidacy  for  Congress  in  1862. 

Wonderment  was  publicly  expressed  that  such  an  obscure 
person  should  have  been  made  Chief  Justice.  Yet  in  official 
circles  it  was  well  known  that  the  interest  that  had  chiefly 
pushed  him  was  the  powerful  Vanderbilt  family,  at  that  time, 
as  it  still  is,  one  of  the  largest  railroad  owners  in  the  United 
States. 

But  although  railroad  magnates  such  as  Vanderbilt  and 
Gould  were  warring  fiercely  upon  one  another,  and  in  turn 
were  ousting  the  lesser  railroad  capitalists,  all  the  railroad  in- 
terests had  certain  ends  in  common  so  far  as  the  construction 
of  law  was  concerned.  On  the  interpretation  of  law  in  gen- 
eral for  their  benefit,  all  the  magnates,  large  and  small,  were 
united,  irrespective  of  what  their  own  differences  were. 

money,"  and  the  Ohio  Senate  likewise  resolved.  The  specific  testimony 
showed  that  the  Legislature  had  been  debauched  with  corrupt  funds. — 
See,  Report  No.  1400,  TJT.  S.  Senate,  Forty-ninth  Congress,  1886,  and 
see  a  complete  account  from  the  records  in  Lloyd's  "  Wealth  vs.  Com- 
monwealth," pp.  373-382. 

18  "  Poor's  Railroad  Manual"  for  1869-1870:  p.  26. 


UNDER    CHIEF    JUSTICE    WAITE  539 

While,  therefore,  a  judge's  antecedents  were  those  of  retainer- 
ship  for  this  or  that  particular  railroad  magnate,  still  his 
previous  training  and  attachments  would  incline  him  to  favor 
all  railroad  interests  as  against  public  agitation. 

Some  of  the  great  railroad  questions  certain  to  come  up 
before  the  Supreme  Court  were  those  dealing  with  the  inter- 
pretations of  laws  by  which  the  various  Pacific  railroads  had 
obtained  immense  land  grants  and  Government  money  sub- 
sidies. 

In  1868-69  Jav  Gould  and  Russell  Sage  had  begun  to  get 
control  of  the  Union  Pacific  and  allied  railroads ;  and  had,  as 
later  investigations  and  actions  showed,  like  Stanford  and 
Huntington,  set  out  to  manipulate  those  roads  in  order  to 
cheat  the  Government.  Caleb  Cushing,  one  of  Waite's  prin- 
cipal backers,  was  very  close  to  Sage.  The  Vanderbilts,  too, 
had  their  ambitious  schemes  and  interests ;  they  were  con- 
stantly extending  their  railroad  power;  and  issues  affecting 
their  interests  would  necessarily  come  for  final  decision  before 
the  Supreme  Court  of  the  United  States.  In  addition  there 
were  questions  of  railroad  stock  and  bond  issues;  of  land 
grants  either  given  to  railroads  or  in  which  they  were  inter- 
ested; of  railroad  pools  and  many  other  considerations  deter- 
mining whether  the  wealth  and  power  of  railroad  owners 
should  be  aggrandized  or  hindered  by  court  decision.  Not 
the  least,  it  was  certain  that  pressing  questions  arising  from 
conflicts  with  labor  organizations  would  be  argued  up  to  the 
Supreme  Court. 


Grant's  Intimacy  with  the  Vanderbilts. 

With  the  Vanderbilt   family  President  Grant  was  on  the 
most  excellent  terms.     Indeed,  ten  years  later,  after  the  firm 
of  which  Grant  was  a  member  —  that  of  Grant  and'  Ward  — 
had  gone  into  bankruptcy,  it  was  to  William  H.  Vanderbilt 
that  Grant  appealed  for  a  loan  of  $150,000,  and  it  was  from 


540  HISTORY  OF   THE   SUPREME   COURT 

that  powerful  magnate  —  then  the  richest  in  the  United  States 
—  that  Grant  obtained  it. 

On  May  4,  1884,  General  Grant  called  at  Vanderbilt's  resi- 
dence, at  No.  640  Fifth  Avenue,  New  York  City,  and  asked 
for  the  loan  of  $150,000.  "  I  gave  him  my  check  without 
question,"  wrote  Vanderbilt  on  January  10,  1885,  to  Mrs. 
Grant,  "  not  because  the  transaction  was  business-like,  but 
simply  because  the  request  came  from  General  Grant."  Gen- 
eral and  Mrs.  Grant  sent  to  Vanderbilt  deeds  on  their  joint 
properties  to  cover  the  obligation,  but  Vanderbilt  returned  the 
deeds. 

Subsequently,  when  Vanderbilt  was  in  Europe,  General 
Grant  delivered  to  Vanderbilt's  attorney  mortgages  upon  every- 
thing that  he  owned,  including  military  trophies  and  presents 
from  foreign  governments.  On  January  10,  1885,  Vanderbilt 
presented  as  a  gift  to  Mrs.  Grant's  personal  estate  the. debt 
and  judgment  that  General  Grant  owed,  and  the  mortgages 
on  household  goods  and  articles  pledged.  The  only  condition 
was  that  at  Grant's  death,  the  articles  of  historical  value  should 
be  presented  to  the  Government.  "...  I  have  only  to 
add,"  wrote  Grant  in  reply  to  Vanderbilt,  on  the  same  day, 
"  that  I  regard  your  giving  me  your  check  for  the  amount 
without  inquiry  as  an  act  of  marked  and  unusual  friend- 
ship. .  .  ."  After  considerable  vacillation,  General  and 
Mrs.  Grant  finally  decided  to  have  certain  of  their  mortgaged 
property  sold  toward  the  payment  of  -the  debt.17 

At  the  time  that  Waite  was  appointed  Chief  Justice  the  Van- 
derbilts  controlled  the  New  York  and  Harlem  Railroad,  the 
New  York  and  Hudson  River  Railroad,  the  Lake  Shore  Rail- 
road; and  they  presently  acquired  the  Canada  Southern  and 
Michigan  Central  Railroad,  and  a  large  interest  in  the  North- 
western Railway. 

1T  The  full  correspondence  between  General  and  Mrs.  Grant  and 
William  H.  Vanderbilt  is  published  in  Appendix  F  in  Croffut's  "The 
Vanderbilts,"  294-297. 


UNDER    CHIEF   JUSTICE    WAITE  541 

A  Succession  of  Railroad  Decisions. 

The  new  Chief  Justice  was  of  medium  height,  stout  and 
straight  in  build,  and  he  was  strong,  firm  and  quick  in  move- 
ment, with  a  self-confident  manner.  His  eyes  were  dark  and 
keen,  his  hair  iron-gray,  his  upper  lip  was  kept  clean  of  growth, 
and  carefully-trimmed  whiskers  covered  the  remainder  of  his 
face.  His  mouth  and  nose  were  large,  his  chin  heavy. 

One  of  the  first  cases  argued  after  Waite  had  taken  his  seat 
was  one  of  the  greatest  importance  to  the  railroads  on  the  one 
hand,  and,  on  the  other,  to  the  public. 

Throughout  the  country  railroad  promoters  had  influenced 
the  authorities  of  municipalities  to  issue  vast  amounts  of  bonds 
to  assist  in  the  private  construction  of  railroads.  Indignant 
at  this  abuse  of  public  funds,  the  people  of  various  States,  in 
particular  those  of  Michigan,  had  insisted  upon  putting  pro- 
visions in  their  State  Constitutions  forbidding  such  grants. 
The  township  of  Pine  Grove,  Michigan,  had  issued  bonds  to 
aid  in  the  building  of  the  Kalamazoo  and  South  Haven  Rail- 
road, and  subsequently  refused  to  pay,  on  the  ground  that 
they  were  unconstitutional.  Talcott,  one  of  the  bondholders, 
brought  suit  to  recover. 

Chief  Justice  Waite  was  disqualified  from  participating  in 
the  case  because  his  interest  was  concerned. 

Delivering  the  Supreme  Court's  opinion,  Justice  Swayne  de- 
cided that  the  bonds  were  valid ;  his  chief  ground  was  the 
assumed  doctrine  of  acquiescence.  ".  .  .  When  the  bonds 
were  issued,  he  said,  "  there  had  been  no  authoritative 
information  from  any  quarter  that  such  statutes  were  invalid. 
.  .  .  And  during  the  period  covered  by  their  enactment, 
neither  of  the  other  departments  of  the  State  lifted  up  its 
voice  against  them.  The  acquiescence  was  universal."  18  The 

18  Case  of  Township  of  Pine  Grove  vs.  Talcott,  XIX  Wallace's  Re- 
ports, 678.  The  note  on  the  record  reads :  "  The  Chief  Justice  did  not 
sit  in  this  case,  and  took  no  part  in  its  decision"  (p.  679).  Justices 
Miller  and  Davis  dissented. 


542  HISTORY  OF  THE   SUPREME   COURT 

decision  in  this  case  caused  great  exultation  among  railroad 
owners,  and  formed  a  precedent  much  cited  thereafter. 

Following  this  decision  came  another  decision  also  ranking 
as  an  authoritative  precedent,  and  many  times  cited.  It  al- 
lowed railroad  capitalists  who  had  secured  by  every  corrupt 
means  immense  land  grants,  to  keep  those  grants  intact  and 
safe  from  forfeiture. 


Railroads  Escape  Forfeiture  of  Land  Grants. 

The  case  establishing  their  vested'right  to  this  plunder  was 
that  of  Schulenberg  vs.  Harriman,  decided  by  the  Supreme 
Court  of  the  United  States  in  October,  1874.  In  June,  1856, 
Congress,  after  bribery  had  been  freely  used,18  passed  an  act 
granting  about  2,388,000  acres  of  public  land  in  Wisconsin  to 
be  allotted  by  the  Legislature  of  that  State  for  the  express 
purpose  of  encouraging  the  building  of  railroads. 

It  was  distinctly  provided  that  the  railroads  were  to  be  built 
within  ten  years.  In  the  same  year — 1856  —  various  rail- 
road adventurers  corrupted  the  Wisconsin  Legislature  to  pass 
acts  giving  them  land  grants.  The  La  Crosse  and  Milwaukee 
Railroad,  as  we  have  seen,  distributed  at  least  $800,000  in 
bribes  for  the  passage  of  an  act  granting  it  1,000,000  acres.20 
Another  one  of  the  land  grants  obtained  that  year  was  for  a 

19  Reference  has  been  already  made  to  the  report  of  a  Select  Com- 
mittee of  Congress  appointed  to  investigate  alleged  corrupt  combina- 
tions of  members  of  Congress,  and  how  that  committee  recommended 
the  expulsion  of  four  prominent  Congressmen  as  having  been  at  the 
head  of  corrupt  combinations  to  influence  legislation.     (Reports  of  Com- 
mittees, 1856-1857,  Vol.  Ill,  Report  No.  245.)     Thirty  distinct  land-grant 
acts  were  passed  by  Congress  in  the  year  1856. 

20  This  $800,000  in  bribes,  according  to  the  report  of  the  joint  Legis- 
lative Committee  of  1858,  had  been  thus  distributed:     A  total  of  $175,- 
ooo   in    bonds   had   been    given    to   thirteen    specified    State    Senators ; 
$355,000  in   bonds   was   used   to  buy   seventy   specified   Assemblymen; 
$50,000  in  bonds  had  been  given  to  Governor  Coles  Bashford ;  $16,000 
to  other  State  officials,  and  $246,000  to  certain   specified  editors  and 
other  persons. 


UNDER   CHIEF   JUSTICE    VVAITE  543 

railroad  from  Portage  City  to  Lake  St.  Croix,  with  extensions ; 
this  was  the  particular  land  grant  involved  in  the  case  of 
Schulenberg  vs.  Harriman. 

The  obvious  fact  was  admitted  in  the  suit  that  neither  the 
railroad  nor  any  part  of  it  had  ever  been  constructed.  Yet 
the  railroad  capitalists  had  claimed  the  land  grant  as  their 
absolute  property,  and  by  1873,  no  less  an  immense  quantity 
than  1,600,000  feet  of  the  most  valuable  pine  timber  had 
been  stripped  from  it.  Since  no  part  of  the  railroad  had  been 
constructed,  the  State  of  Wisconsin  took  the  position  that 
the  land  grant  reverted  to  the  State  or  Government,  as  ex- 
plicitly provided  in  the  original  act  of  Congress. 

The  Supreme  Court  of  the  United  States  did  not  take  this 
view.  In  its  decision,  written  by  Justice  Field,21  it  held  that 
inasmuch  as  no  action  had  been  taken  by  legislative  or  judicial 
proceedings  to  enforce  the  forfeiture  of  the  grants,  therefore, 
the  lands  had  not  reverted.22 

It  need  scarcely  be  said  that  this  decision  legalized  the  con- 
summation of  the  most  enormous  frauds.  Moreover,  it  gave 
an  unmistakable  cue  to  railroad  looters.  All  that  they  now 
had  to  do  was  to  corrupt  Congress  to  pass  acts  extending  the 
time  for  the  construction  of  railroads,  deriving  meanwhile  pro- 
digious profits  from  the  exploitation  of  vast  areas  of  land  to 
gain  which  they  had  done  nothing.  And  that  they  did  cor- 
rupt Congress  was  speedily  shown  in  the  scandals  concerning 
the  Southern  Pacific,  the  Central  Pacific  and  other  railroad 
measures,  not  the  least  of  which  was  the  Texas  Pacific  bill 

21  It  may  be  observed  here  that  Justice  Field's  brother,  David  Dudley 
Field,  was  at  this  time  representing  the  Central  Railroad  of  Georgia 
and  other  railroads  in  cases  before  the  Supreme  Court  of  the  United 
States. —  See,  92   U.    S.    Reports,   666,   etc.     But   a    few   years   before, 
David    Dudley    Field    had    been    the   chief   attorney    pleading    for    the 
fraudulent  transactions  of  Jay  Gould  and  James  Fisk,  Jr. 

22  XXI  Wallace's  Reports,  44.     One  of  the  railroad's  attorneys  was 
John  C.  Spooner,  for  a  long  period  United  States  Senator  from  Wis- 
consin, and  one  of  the  most  adroit  and  conspicuous  members  of  that 
body. 


544  HISTORY   OF   THE    SUPREME   COURT 

promoted  by  Senators  Matthews  and  Lamar,  who  themselves 
became  Justices  of  the  Supreme  Court  of  the  United  States."3 


The  Grange  Movement. 

At  this  period  there  developed  an  organized  agrarian  agita- 
tion which  had  considerable  influence  upon  politics.  It  grew 
to  such  strength  that  politicians,  especially  of  the  agricultural 
regions,  sought  to  propitiate  it.  In  the  records  of  the  Supreme 
Court  of  the  United  States  we  find  references  to  it ;  and  that 
in  its  decisions  affecting  railroads  the  Supreme  Court  sought 
to  make  an  appearance  of  deference  by  handing  down  cer- 
tain decisions  apparently,  but  not  in  reality,  against  the  rail- 
road corporations,  is  quite  certain. 

This  organized  movement  was  called  the  Grangers,  com- 
posed of  American  agriculturalists.  It  was  essentially  a  mid- 
dle-class movement,  and  it  later  merged  into  the  Farmers' 
Alliance,  which,  in  turn,  blended  into  the  Populist  Party.  It 
was  estimated  that  at  the  end  of  the  year  1875,  there  were 
30,000  granges  in  existence,  with  an  average  of  about  forty 
members  each ;  the  order  was  strongest  in  the  West  and  North- 
west, and  had  a  considerable  following  in  the  South.  Pro- 
fessing to  be  non-partisan,  it  was  nevertheless  the  stimulus 
of  a  powerful  agitation  against  discrimination  in  railroad 
freight  rates,  and  it  declared  for  the  recovery  of  excess  lands 
held  by  railroads,  and  the  prohibition  of  the  ownership  of 
land  by  aliens  and  foreign  syndicates.  Later  came  a  demand 
for  Government  ownership  of  railroads. 

The  Union  Pacific  Railroad  Relieved  from  Restitution. 

Goaded  into  action  by  public  agitation,  the  Government,  in 
1878,  brought  a  suit  against  the  Union  Pacific  Railroad  Com- 
pany for  the  restitution  of  the  enormous  sums  of  which  suc- 
cessive groups  of  capitalists  had  swindled  the  Government. 

23  See  details  later  in  this  chapter. 


UNDER    CHIEF   JUSTICE    WAITE  545 

This  company,  had  obtained,  by  means  of  bribing  Congress, 
a  land  grant  of  12,000,000  acres,  and  also  a  loan  of  $27,213,000 
in  Government  bonds.  The  Credit  Mobilier  Company  had 
then  been  organized  to  construct  the  railroad.  Comprising 
the  company  were  some  of  the  most  powerful  capitalists  in 
the  United  States  —  conspicuous  bankers,  such  as  Levi  P.  Mor- 
ton (later  Vice  President  of  the  United  States)  and  William 
H.  Macy ;  and  factory  owners,  such  as  Cyrus  McCormick  and 
George  M.  Pullman.  Charges  of  enormous  thefts  committed 
by  the  Credit  Mobilier  Company  resulted  in  the  appointment 
of  an  investigating  committee  by  the  United  States  Senate. 
This  committee,  called  the  "  Wilson  Committee,"  from  the 
name  of  Senator  Wilson,  its  chairman,  reported  in  1873: 

That  the  total  cost  of  building  the  Union  Pacific  Railroad 
was  $50,000,000. 

That  the  Credit  Mobilier  Company  had  charged  $93,546,- 
287.28. 

That  "  from  the  stock,  income  bonds,  and  land-grant  bonds, 
the  builders  received  in  cash  value  $23,366,000  as  profit  — 
about  forty-eight  per  cent,  on  the  entire  cost." 

The  total  "  profits  "  were,  therefore,  about  $44,000,000,  of 
which  the  sum  <ff  $23,000,000  or  more  was  in  immediate  cash. 
The  committee  reported  that  large  sums  of  money,  borrowed 
for  the  ostensible  purpose  of  building  the  railroad,  had  at  once 
been  divided  as  plunder  in  the  form  of  dividends  upon  stock 
for  which  not  a  cent  in  money  had  been  paid,  in  violation  of 
law.24 

Finally,  as  a  matter  of  fact,  the  Union  Pacific  road  was 
owned  entirely  by  private  capitalists,  although  it  had  been  built 
almost  wholly  with  Government  grants  and  loans. 

After  this  looting  had  been  accomplished,  the  value  of  the 
stock  of  the  Union  Pacific  Railroad  had  necessarily  fallen,  at 
which  auspicious  time  Jay  Gould  and  Russell  Sage  acquired 

24  Reports  of  Committees,  Credit  Mobilier  Reports,  Forty-second 
Congress,  Third  Session,  1872-73,  Doc.  No.  78:  xiv-xx. 


546  HISTORY   OF  THE   SUPREME   COURT 

the  railroad,  and,  as  the  report  of  the  Pacific  Railroad  Com- 
mission of  1887  showed,  subjected  it  to  another  comprehensive 
process  of  looting. 

In  bringing  its  suit  in  1878  for  misappropriation  and  for 
restitution  of  the  stolen  funds,  the  Government,  in  its  bill  of 
complaint,  stated  the  specifications  of  fraud  and  theft,  page 
after  page  of  them.  It  asked  that  the  construction  contracts 
and  land-grant  and  income  mortgages  be  declared  void.  The 
chief  attorney  for  the  railroad  in  this  case  was  William  M. 
Evarts.  At  Yale  Evarts  had  been  a  classmate  of  Chief  Jus- 
tice Waite.  Evarts  had  been  an  attorney  for  the  Pacific  Mail 
Steamship  Company  which,  as  we  have  seen,  had  disbursed 
$1,000,000  in  bribes,  in  1872,  to  obtain  the  passage  of  an  act  of 
Congress.  Evarts  had  also  represented  the  Chicago,  Rock 
Island  and  Pacific  Railroad.  Subsequently  he  became  — 
1885-1891 — a  United  States  Senator  from  New  York. 

Delivering  the  majority  opinion,  Justice  Miller  decided  that 
the  Government  had  made  out  no  case  for  relief.  He  con- 
cluded with  these  remarks,  the  first  of  which  was  unfounded 
in  fact,  and  the  remainder  of  which  have  seldom  been  equaled 
for  their  sardonic  cynicism. 

".  .  .  The  Government "  (said  he)  "^ias  received  all 
of  the  advantages  for  which  it  had  bargained,  and  more  than 
it  expected.  In  the  feeble  infancy  of  this  child  of  its  creation," 
Miller  went  on,  "  the  Government,  fully  alive  to  its  importance, 
did  all  that  it  could  to  strengthen,  support  and  sustain  it." 
Every  Justice  of  the  Supreme  Court  knew  that  the  Govern- 
ment had  done  nothing  of  the  kind.  Everyone  of  them  was 
aware  that  it  was  by  corruption  that  the  Union  Pacific  Rail- 
road promoters  had  accomplished  their  ends.  Not  a  single 
Justice  was  ignorant  of  the  report  of  the  "  Wilson  Committee," 
handed  in  five  years  previously,  that  those  promoters  had  il- 
licitly expended  a  corruption  fund  of  nearly  $436,000  to  get 
the  act  of  July,  1864,  passed,  and  that  another  corruption  fund 
of  $126,000  had  been  used  to  get  the  act  of  March  3,  1871, 


UNDER   CHIEF   JUSTICE   WAITE  547 

passed  by  Congress  allowing  the  Union  Pacific  Railroad  exorbi- 
tant rates  for  the  transportation  of  Government  supplies  and 
mail.25  Every  newspaper  in  the  country  had  been  filled  with 
the  details  of  the  testimony. 

"  Since,"  Justice  Miller  concluded,  "  it  [the  Union  Pacific 
Railroad]  has  grown  to  vigorous  manhood,  it  may  not  have 
displayed  the  gratitude  which  so  much  care  called  for.  If  this 
be  so,  it  is  but  another  instance  of  the  absence  of  human 
affections  which  is  said  to  characterize  all  corpora- 
tions. .  .  ."20 

One  of  the  points  of  this  decision  was  that  the  Government 
could  not  sue  until  the  company's  debt  matured  in  1895.  This, 
as  we  shall  see,  gave  Gould,  Sage  and  associates  a  new  lease 
of  life  in  their  operations,  enabling  them  to  loot  further  on  an 
enormous  scale. 

Fraudulent  Bonds  Given  Precedence. 

At  the  same  time,  the  Supreme  Court  of  the  United  States, 
in  October,  1878,  handed  down  another  decision  in  favor  of 
the  Union  Pacific  Railroad.  The  railroad  had  sued  the  Gov- 
ernment for  compensation  for  transporting  troops,  supplies, 
etc.  The  Government  set  up  a  counter-claim  for  five  per  cent, 
of  the  net  earnings  of  the  company,  as  due  under  the  act  of 
July  i,  1862,  for  the  payment  of  bonds.  The  Court  of  Claims 
decided  that  the  railroad  had  been  completed  in  1869,  and  that 
the  company's  profit  on  the  operation  of  the  road  from  1869 
to  1875  had  been  $29,052,045.67'.  The  Court  of  Claims,  ac- 
cordingly, gave  the  Government  a  judgment,  for  $1,402,602.28, 
as  being  five  per  cent,  on  the  profits,  and  it  awarded  the  com- 
pany $593,627.10  for  services.  From  this  decision  the  com- 
pany appealed. 

Reversing  the  judgment,  Justice  Bradley,  writing  the  opin- 

-r-  See,  Doc.  No.  78,  Credit  Mobilier  Investigation,  xvii. 
20  U.  S.  vs.  Union  Pacific  Railroad,  98  U.  S.  Reports,  620. 


548  HISTORY   OF   THE   SUPREME   COURT 

ion  of  the  Supreme  Court's  majority,  based  his  decision  in 
favor  of  the  company  upon  the  construction  of  the  act  of  July 
2,  1864.  The  fact  that  it  was  for  the  passage  of  that  very 
law  that  the  Union  Pacific  Railroad  Company  had  distributed 
nearly  $436,000  in  bribes,  was  wholly  ignored.  Bradley  held 
that  the  act  in  question  authorized  the  company  to  issue  an 
equal  amount  .of  first-mortgage  bonds  to  have  priority  of  the 
Government  bonds. 

It  was  well  known  that  the  act  was  lobbied  through  for  the 
express  purpose  of  cheating  the  Government.  Here,  again, 
the  vaunted  principle  of  law  that  fraud  vitiated  every  contract, 
was  serenely  passed  over  by  the  Supreme  Court.  The  circum- 
stances of  the  passage  of  the  act,  and  of  the  great  plundering 
going  on,  were  not  even  considered.  Bradley  held  that  the 
act  of  1864  empowered  the  company  to  issue  an  equal  amount 
of  first-mortgage  bonds  to  have  priority  over  the  Government 
bonds;  hence  those  holding  these  bonds  had  the  preference  of 
being  paid  before  the  Government  could  receive  its  five  per  cent. 
Justices  Strong  and  Harlan  strongly  dissented,  practically  say- 
ing that  the  effect  of  the  decision  was  to  facilitate  and  legalize 
the  swindling  of  the  Government.27  The  same  decision  was 
made  in  the  case  of  actions  against  the  Denver  Pacific  Rail- 
road and  other  railroads. 

The   Accompanying   and   Subsequent  Thefts. 

But  who  owned  these  first  mortgage  bonds?  The  majority 
report,  nine  years  later,  of  the  Pacific  Railway  Commission, — 
a  Government  investigating  body  —  reported  in  detail  the  vast 
thefts  committed  by  the  Credit  Mobilier  Company  and  by 
Gould,  Sage  and  associates.  In  consolidating  the  Kansas  Pa- 
cific, the  Denver  Pacific  and  other  railroads  with  the  Union 
Pacific,  Gould,  Sage  and  company  had  misappropriated  more 

27  Union  Pacific  Railroad  vs.  U.  S.,  99  U.  S.  Reports,  402. 


UNDER    CHIEF   JUSTICE    WAITE  549 

than  $20,000,000  by  the  fraudulent  jugglery  of  stocks  and 
bonds.  The  Union  Pacific  Company  had  sold  not  less  than 
7,000,000  acres  of  land,  although  it  had  got  no  patent  from 
the  Government.28  Great  areas  of  the  most  valuable  coal  lands 
had  been  fraudulently  appropriated.29  The  fraudulent  shuf- 
fling of  millions  of  dollars  from  one  corporation  to  another 
was  another  fertile  source  of  loot.  The  stock  of  the  Union  Pa- 
cific had  been  inflated  from  $38,000,000  to  $50,000,000;  the 
bonded  indebtedness  from  $88,000,000  to  $126,000,000,  and 
sundry  other  indebtedness  to  nearly  $10,000,000. 

While  this  plundering  was  in  process,  Gould  and  Sage  were 
putting  the  railroad  in  a  condition  of  bankruptcy  for  the 
double  purpose  of  draining  its  funds,  and  of  pleading  that  the 
railroad  could  not  afford  to  reimburse  the  Government  for  its 
loa;is.  The  majority  report  of  the  Pacific  Railway  Commis- 
sion described  "  the  lavish  and  reckless  distribution  of  the 
assets  of  the  company  in  dividends,"  and  pointedly  asked  why 
it  was  that  although  the  Union  Pacific  Company  had  been 
doing  a  large  and  profitable  business,  "  it  found  itself  early 
in  1884  on  the  verge  of  bankruptcy." 

Had  it  not  been  for  the  two  decisions  of  the  Supreme  Court 
we  have  cited,  this  looting  would  have  received  a  check.  The 
Supreme  Court  had  virtually  legalized  and  justified  it.  And 
it  is  also  set  forth  in  the  Pacific  Railway  Commission's  ma- 
jority report  that  while  stealing  tens  of  millions  of  dollars, 
and  at  the  very  time  the  Government's  action  for  misappro- 
priation of  funds  was  before  the  Supreme  Court  of  the  United 
States,  Gould  and  Sage  took  measures  to  relieve  themselves 
from  any  liability  to  the  Union  Pacific  Railroad  as  a  corpora- 
tion. 

"  It  appears,"  the  majority  report  of  Messrs.  Littler  and  An- 
derson reads,  "  that  while  this  litigation  was  pending,  certain 

28  Report  of  Pacific  Railway  Commission,  Vol.  1 :  102. 
»/«&. 


550  HISTORY   OF    THE    SUPREME    COURT 

proceedings  were  taken  by  the  directors  whereby,  by  their  own 
acts  and  votes,  they  undertook  to  release  themselves  from  any 
obligation  or  liabilities  to  the  company." 

The  minority  report  of  Commissioner  Partisan  was  even 
more  penetrating.  It  declared  that  the  Union  Pacific  Railroad 
and  the  Kansas  Pacific  Railroad  had  received  about  $35,000,- 
ooo  in  loans  from  the  Government,  of  which  little  had  been 
returned.  It  recited  that  up  to  1887  the  sum  of  $136,314,- 
010.73  "  nad  been  dissipated  "  by  the  directors  of  these  two 
railroads.30  Not  less  than  $84,000,000  of  watered  stock  had 
been  issued.  "  The  Union  Pacific  Company,"  the  minority  re- 
port continued,  "has  received  $176,294,793.53  in  surplus  earn- 
ings and  land  sales  during  eighteen  years,  and  if  its  stock 
had  been  fully  paid,  as  Congress  required  that  it  should  be, 
and  its  officers  certified  under  oath  that  it  was,  nearly  all  of 
that  money  would  be  applicable  to-day  to  the  payment  of  the 
Government  debt.  The  company  has  paid  out  $28,650,770 
in  dividends,  and  $82,742,850  in  interest  on  bonds,  nearly 
all  of  which  was  distributed  to  shareholders  without  consid- 
eration .  .  ."  Commissioner  Pattison  estimated  that  Jay 
Gould's  personal  share  of  the  loot  was  probably  $4O,ooo,ooo.31 

This  report  reveals  the  condition  of  affairs  nine  years  after 
the  Supreme  Court  of  the  United  States  decided  in  favor  of 
Gould,  Sage  and  associates  of  the  Union  Pacific  Railroad 
Company.  Likewise  it  disclosed  the  futility  of  the  "  Sinking 
Fund  "  decision  that  the  Supreme  Court  of  the  United  States 
had  rendered  late  in  1878  asserting  that  in  the  cases  of  the 
debt  of  the  Pacific  railroads  the  act  of  Congress,  of  May 
7,  1878,  establishing  a  sinking  fund,  was  constitutional. 
First,  the  Supreme  Court  denied  the  application  of  the  Gov- 
ernment for  restitution,  and  allowed  the  manipulators  to 
juggle  and  pocket  all  the  profits.  Having  done  that,  the 
Supreme  Court  then  said  that  the  Government  had  a  right 

30  Report  of  the  Pacific  Railway  Commission.  Vol.  1 :  147. 
si  Ibid. 


UNDER    CHIEF   JUSTICE    WAITE  551 

to  conduct  a  sinking  fund !  The  empty  right  was  allowed, 
but  from  where  was  the  money  for  the  sinking  fund  to  come? 
Stanford,  Huntington,  Gould,  Sage  and  associates  were  ap- 
propriating it  by  the  hundreds  of  millions  for  their  private 
fortunes. 

It  should  be  noted  that  in  the  "  Sinking  Fund  Cases," 
Justices  Field,  Strong  and  Bradley  dissented  at  length.  In 
the  previous  cases  they  had  concurred  in  holding  that  a  con- 
tract was  to  be  strictly  construed.  In  this  case,  notwithstand- 
ing the  fact  that  the  Pacific  railroads  had  received  the  Gov- 
ernment funds  on  explicit  condition  of  repaying  them, 
Justice  Strong  advanced  this  extraordinary  proposition : 
".  .  .  'Had  it  been  dreamed  that  a  call  could  have  been 
made  at  any  time  thereafter  designated  by  Congress,  it  is 
inconceivable  that  the  loan  proffered  would  have  been  ac- 
cepted. .  ." 32  "  The  loan  proffered  "  was  a  rare  way  of 
putting  the  case,  considering  that  Congress  had  been  bribed 
to  give  that  very  loan.  Vested  rights,  Justice  Strong  went 
on,  "  no  matter  how  they  arise,  are  all  equally  sacred,  beyond 
the  reach  of  legislative  influence."  33 

Justice  Bradley  wrote. a  long  dissenting  opinion,  and  Jus- 
tice Field,  who  did  likewise,  began,  "  The  decision  will,  in 
my  opinion,  tend  to  create  insecurity  in  the  title  to  corporate 
property  in  the  country,"  etc.,  etc. —  a  groundless  assertion, 
as  Field  himself  no  doubt  well  knew,  and  as  events  fully 
proved.  Then  Justice  Field  proceeded  to  expound  an  elabo- 
rate defense  of  the  Pacific  railroads,  particularly  of  the  Cen- 
tral Pacific  Railroad.34 

These  are  some  typical  instances  of  decisions  regarding 
railroads  handed  down  under  Chief  Justice  Waite.  With  a 
few  adverse  decisions  of  comparatively  slight  importance, 
railroad  interests  were  dissatisfied,  but  the  greater  number  of 

32  99  U.  S.  Reports,  733. 

33  Ibid.     The  italics  are  mine. —  G.  M. 
3*  Ibid. 


552  HISTORY   OF   THE   SUPREME   COURT 

decisions  were  entirely  favorable  to  the  railroad  owners.  To 
enter  into  the  consideration  of  this  mass  of  decisions  is  out  of 
the  question  here. 


Claims  Confirmed  to  Forgers  and  Perjurers. 

The  decisions  of  the  Supreme  Court  concerning  private 
land  claims  were  also  most  uniformly  favorable  to  the  claim- 
ants. 

Discovering  new  evidence  of  fraud,  the  Government 
brought  suit  to  void  a  decree  of  the  lower  court  confirming 
a  large  California  land  claim  to  W.  A.  Richardson,  who,  as 
we  have  seen,  had  been  officially  exposed  as  a  notorious  per- 
jurer. The  Government's  petition  set  forth  that  after  sub- 
mitting his  claim  to  the  Board  of  Land  Commissioners,  in 
1852,  Richardson  became  satisfied  that  he  had  not  evidence 
enough  to  support  his  claim,  and  that  he  went  to  Mexico,  and 
obtained  from  Micheltorena,  the  former  Mexican  Governor 
of  California,  "  his  signature,  on  or  about  the  first  day  of 
July,  1852,  to  a  grant  which  was  falsely  and  fraudulently  ante- 
dated, so  as  to  impose  on  the  court  the  belief  that  it  was 
made  at  a  time  when  Micheltorena  had  power  to  make  such 
grants  in  California."  The  Government  also  charged  that 
Richardson,  "  in  support  of  this  simulated  and  false  docu- 
ment also  procured  and  filed  therewith  the  depositions  of 
perjured  witnesses." 

After  getting  a  confirmation  from  the  United  States  Dis- 
trict Court,  Richardson  turned  over  the  claim  to  Throckmor- 
ton,  George  H.  Howard  and  others.  Howard,  in  1852,  was 
the  United  States  law  agent  before  the  land  commission. 
The  Government  now  charged  that  "  Howard,  one  of  the 
present  defenders  had,  from  the  papers  in  some  other  suit, 
derived  notice  of  the  fraudulent  character  of  the  Michelto- 
rena grant,  and  that  he  failed  and  neglected  [in  1852]  to 


UNDER   CHIEF   JUSTICE    WAITE  553 

inform  the  commissioners  of  the  fact,  or  otherwise  defend 
the  interests  of  the  United  States  in  the  matter."  35 

Howard,  it  may  be  remarked,  had  also  been  interested  with 
Teschmaker  and  others  in  a  sixteen-league  claim  in  Napa 
County,  California,  alleged  to  have  been  granted  by  Michel- 
torena.  The  Supreme  Court  of  the  Unitel  States  had,  in 
1858,  denounced  this  sixteen-league  claim  as  a  forgery,  sup- 
ported by  such  professional  perjurers  as  Juan  Castenada, 
and  had  voided  it.36 

Common  sense  alone  would  have  dictated  the  fair  as- 
sumption that  if  Howard  had  been  detected  in  promoting  one 
forged  grant,  all  his  other  acts  would  inferentially  stand  im- 
peached. But  in  deciding  the  Throckmorton  case,  the 
Supreme  Court  of  the  Unitel  States  presented  some  singular 
views.  Writing  the  court's  opinion,  Justice  Miller  acknowl- 
edged, to  begin  with,  that  the  Government  was  not  bound  by 
the  statute  of  limitations.  He  complained,  however,  that  the 
suit  was  brought  twenty  years  after  the  decree  of  the  Dis- 
trict Court,  and  that  to  retry  the  case  would  involve  perhap's 
more  appeals.  "If  we  can  do  this  now,  some  other  court 
may  be  called  on  twenty  years  hence  to  retry  the  same  matter 
on  another  allegation  of  fraudulent  combination  in  this  suit 
to  defeat  the  ends  of  justice,  and  so  the  number  of  suits  would 
be  without  limit."  Moreover,  he  said,  there  were  no  speci- 
fications of  the  means  by  which  fraud  had  been  accomplished. 

The  fact  that  Howard  had  been  condemned  twenty  years 
previously  by  the  Supreme  Court  for  pushing  a  forged  grant, 
did  not  count  with  the  eminent  Justices.  That  in  many  cases 
proof  had  been  presented  that  United  States  district  attorneys 
had  often  been  in  collusion  with  land-claim  forgers  and  had 
long  concealed  the  fact  —  this,  too,  was  ignored.  Nor  did 
the  Supreme  Court  give  the  slightest  consideration  to  the 

35  U.  S.  vs.  Throckmorton  el  al.,  98  U.  S.  Reports,  69. 

30  U.  S.  vs,  Teschmaker,  Howard  ei  al.,  XXII  Howard's  Reports,  395, 


554  HISTORY   OF   THE   SUPREME   COURT 

fact  that  District  Judges  in  California  had  been  interested  in 
these  fraudulent  claims,  and  that  the  scandal  was  so  great 
that  Congress,  in  1864,  had  passed  an  act  prohibiting  those 
judges  sitting.  That  successive  Attorneys-General  of  the 
United  States  had  exposed  the  Micheltorena  forgeries  —  this, 
also,  had  no  weight  with  the  Justices.  The  Throckmorton 
claim  was  declared  valid,37  serving  as  a  notable  precedent  in 
subsequent  private  land-claim  cases. 

In  another  case  it  was  shown  that  in  1845,  Alcalde  George 
Hyde  had  fraudulently  presented  to  George  Donner,  then 
only  ten  years  old,  and  a  dummy  for  officials,  a  large  and  now 
valuable  plot  of  municipal  land  one  hundred  varas  square 
(about  3333  feet),  in  the  heart  of  San  Francisco.  The  law 
allowed  distribution  of  land  to  settlers  only.  In  validating 
this  grant,  the  Supreme  Court  of  the  United  States,  in  1878, 
said :  "  We  are  not  aware  that  the  Mexican  law  prohibited 
such  a  grant  to  an  infant."  38  These  are  some  characteristic 
examples  of  the  Supreme  Court's  decisions  regarding  land 
claims. 

New  Associate  Justices. 

Many  changes  occurred  in  the  personnel  of  the  Supreme 
Court  at  this  time.  Justice  David  Davis  resigned  in  1877, 
and  became  a  United  States  Senator  from  Illinois.  His  suc- 
cessor, appointed  by  President  Hayes,  was  John  M.  Harlan, 
of  Kentucky. 

Harlari's  father,  James  Harlan,  had  been  a  Whig  politician  of 
some  note  representing  a  Kentucky  district  in  Congress,  1836 
to  1844,  and  had  been  Attorney-General  of  Kentucky  from 
1850  to  1863.  Entering  politics,  John  M.  Harlan  had  been 
defeated  for  Congress,  in  1859;  had  been  breveted  a  colonel 
in  the  Union  'Army  during  the  Civil  War ;  had  been  elected 
Attorney-General  of  Kentucky  in  1863 ;  had  then  practiced  law, 

37  U.  S.  vs.  Throckmorton,  98  U.  S.  Reports,  61-71.     (October,  1878.) 

38  Case  of  Palmer  vs.  Low,  98  U.  S.  Reports,  1-19. 


UNDER   CHIEF   JUSTICE   WAITE  555 

and  had  been  unsuccessful  in  1871  and  1875  in  his  candidacy  for 
Governor  of  Kentucky. 

He  was  one  of  the  visiting  commissioners  to  Louisiana  in 
the  Hayes-Tilden  electoral  contest ;  and  it  was  openly  charged 
by  Senator  Chandler  that  for  his  services  to  Hayes  on  this 
occasion,  Hayes  rewarded  him  by  an  appointment  to  the 
Supreme  Court  of  the  United  States.  On  January  21,  1901, 
Senator  Pettigrew  read  in  the  United  States  Senate  a  letter 
signed  by  Senator  Chandler,  published  in  a  New  York  news- 
paper in  1877.  In  this  letter  Chandler  made  the  charge  that 
Justice  Harlan  was  appointed  to  the  Supreme  Court  as  a 
result  of  his  services  as  a  visiting  commissioner  to  Louisiana 
during  the  Hayes-Tilden  dispute.  After  Pettigrew  had  fin- 
ished reading  the  letter,  Chandler  arose  and  said  that  every 
word  of  it  was  true.38 

The  choice  of  Harlan  was  largely  a  personal  appointment 
of  Hayes.  Harlan  was  not  conspicuous  as  a  railroad  lawyer, 
although  the  fact  that  his  nomination  was  confirmed  by  a  Sen- 
ate controlled  by  railroad  attorneys  and  stockholders  did  not 
pass  unnoticed.  He  was  forty-two  years  old  at  the  time. 

Retiring  on  a  pension,, in   1880,  Justice   Strong  was  suc- 

39  In  the  Presidential  election  of  1876,  the  result  as  to  whether  Hayes 
or  Tilden  was  elected  was  uncertain.  Each  side  charged  fraud,  and  the 
vote  of  certain  reconstructed  States  was  the  deciding  factor.  An 
Electoral  Commission,  composed  of  five  Senators,  five  Representatives, 
and  five  Associate  Justices  of  the  Supreme  Court  of  the  United  States, 
was  created  to  decide  the  election. 

The  New  York  Sun,  a  supporter  of  Tilden,  reiterated  the  charge 
that  after  Justice  Bradley  had  prepared  a  written  opinion  in  favor  of 
the  Tilden  electors  in  Florida,  he  had  changed  his  views  during  the 
night  preceding  the  vote  in  consequence  of  pressure  brought  to  bear 
upon  him  by  Republican  politicians  and  Pacific  Railroad  magnates  whose 
carriages,  the  Sun  said,  surrounded  his  house  during  the  evening.  On 
September  2,  1877,  Bradley  wrote  to  the  Newark  Advertiser  denying 
"  the  whole  thing  as  a  falsehood."  "  Not  a  single  visitor  called  at  my 
house  that  evening.  .  .  ."  The  charge,  Bradley  added,  was  "  too 
absurd  for  refutation."  ("  Miscellaneous  Writings  of  the  Late  Joseph 
P.  Bradley,"  etc.,  p.  221.)  Evidently  the  Sun  sought  to  convey  the  idea 
that  Hayes  was  backed  by  railroad  grandees.  So  he  was.  But  Tilden, 
too,  had  the  support  of  many  of  them ;  he  was  one  of  the  most  promi- 
nent of  railroad  attorneys,  and  an  extensive  holder  of  railroad  stocks. 


556  HISTORY   OF   THE   SUPREME   COURT 

ceeded  by  William  B.  Woods,  of  Ohio.  Woods  was  re- 
garded as  a  political  adventurer.  Born  in  1824,  he  had  been 
a  Democratic  politician  in  Ohio.  An  officer  in  the  Union 
army  during  the  Civil  War,  he,  in  1866,  had  settled  in  Ala- 
bama, during  the  reconstruction  period,  and  had  become  a 
leading  "  carpet-bagger  "  Republican.  He  became  State  Chan- 
cellor in  1868,  and  a  United  States  Circuit  Court  judge,  in  1870. 
His  decisions  in  that  court  were  notoriously  in  favor  of  rail- 
road corporations. 


Opposition  to  Stanley  Matthews. 

The  next  appointment,  that  of  Stanley  Matthews  by  Presi- 
dent Hayes,  aroused  the  most  intense  opposition. 

Matthews  was  nominated  to  succeed  Swayne,  who  resigned 
because  of  disability.  In  1877,  Matthews  had  succeeded 
John  Sherman,  as  a  United  States  Senator  from  Ohio.  Mat- 
thews was  not  only  Jay  Gould's  chief  attorney  in  the  middle 
West,  but  while  in  the  Senate  he  frequently  appeared  in 
court  as  attorney  for  the  Louisville  and  Nashville  Railroad.40 
the  Adams  Express  Company 41  and  other  corporations. 
While  a  member  of  the  United  States  Senate,  and  at  the 
very  time  he  was  appointed  to  the  Supreme  Court,  he  was 
a  director  of  the  Knoxville  and  Ohio  Railroad.42  He  was 
also  counsel  for  the  Springfield  and  Mansfield  Railroad,43  and 
for  other  railroads,  and  held  considerable  stock  in  railroad 
companies.  For  many  years  he  had  been  attorney  for  the 
Cincinnati,  Hamilton  and  Dayton  Railroad,44  for  which,  as 
we  have  noted,  Chief  Justice  Waite  had  also  been  counsel, 

40  See,  Stevens  et  al.  vs.  Louisville  and  Nashville  Railroad  Company, 
U.  S.  Courts  Reports,  Sixth  Circuit  (Flippin),  Vol.  II:  716,  etc.    This 
railroad  dominated  politics  in  Kentucky  and  Tennessee. 

41  Ibid.,  673. 

42  "  Poor's  Railroad  Manual  "  for  1880:  p.  492. 

43  In  a  case  concerning  this  railroad  he  was  disqualified  from  sitting, 
having  been  of  counsel  in  the  case. —  IV  Supreme  Court  Reporter,  259. 

44  XIX  Ohio  State  Reports,  226,  etc. 


UNDER    CHIEF   JUSTICE    WAITE  557 

when  an  attorney.  Matthews  had  been  one  of  the  counsel 
for  the  Hayes  electors  before  the  Electoral  Commission,  and 
had  industriously  worked  for  the  seating  of  Hayes. 

Matthews'  activities  in  the  Senate  for  railroad  corporations 
were  notorious ;  he  and  Senator  Lamar  (who  succeeded  him 
on  the  Supreme  Court  bench)  were  the  chief  pushers  and 
advocates  of  the  amendatory  bill  of  1878  in  favor  of  the 
Texas  Pacific  Railway.  This  railroad  company,  in  1871,  had 
received  a  great  land  grant  of  18,000,000  acres,  and  Gov- 
ernment aid  of  $31,750,000  in  bonds,  on  condition  that  it 
construct,  within  a  certain  time,  a  railroad  from  the  Mississippi 
River  to  San  Diego,  California.  But  it  had  only  built  a  small 
portion  of  the  road,  and  a  move  was  under  way  to  declare  its 
subsidies  forfeited. 

Senator  Matthews,  on  March  19,  1878,  reported  Senate 
Bill  No.  942,  extending  the  time  for  building  the  railroad,45 
and  Senator  Lamar  followed  with  a  long  speech  in  favor  of 
the  bill.  Matthews  also  reported  Senate  Bill  No.  474 
authorizing  the  Southern  Pacific  Railroad  to  build  railroad 
and  telegraph  extensions,  and  giving  Government  aid.46 
Likewise  he  reported  another  bill  in  favor  of  the  .Northern 
Pacific  Railroad.  Of  the  flagrant  corruption  of  Congress 
by  the  Texas  Pacific  Railway  promoters,  and  by  Jay  Gould 
and  Collis  P.  Huntington,  details  are  given  later  in  this  chap- 
ter. Matthews  was  one  of  the  Senators  conspicuously  striv- 
ing to  defeat  the  Pacific  Railroads  Funding  Act.  The  bill, 
however,  was  passed. 

Denounced  as  a  Railroad  Tool. 

On  February  7,  1881,  the  following  telegram  was  received 
in  Washington : 

45  The  Congressional  Record,  Vol.  7,  Part  2,  Forty-fifth  Congress, 
Second  Session,  1878:  p.  1852. 
*«  Ibid. 


558  HISTORY   OF  THE   SUPREME   COURT 

"  To  the  Judiciary  Committee  of  the  United  States  Senate, 

"  The  Hon.  A.  G.  Thurman,  Chairman. 

"  In  behalf  of  800  business  firms  of  the  New  York  Board 
of  Trade  and  Transportation,  we  respectfully  but  earnestly 
protest  against  the  confirmation  of  the  Hon.  Stanley  Matthews 
as  judge  of  the  Supreme  Court  of  the  United  States  for  the 
following  reasons : 

"  We  are  informed  and  believe  that  the  great  railroad  cor- 
porations of  the  country  are  endeavoring  to  obtain  control 
of  this  Court  of  last  resort,  which  has  heretofore  been  the 
most  important  bulwark  in  defending  the  public  interests 
against  the  encroachments  of  corporations ;  that  Mr.  Matthews 
has  been  educated  as  a  railroad  attorney,  and  views  railroad 
questions  from  a  railroad  standpoint;  that  his  actions  while 
in  the  United  States  Senate  prove  this,  and  in  this  important 
.respect  render  him  unfit  for  a  Justice  of  the  Supreme  Court. 

"  AMBROSE  SNOW,  President, 
"  DARWIN  R.  JAMES,  Secretary."  47 

The  explanation  of  this  protest  lay  in  this  fact:  The 
middle-class  business  men  were  infuriated  at  the  dominance 
of  such  lordly  railroad  magnates  as  Vanderbilt,  Gould,  Sage, 
Huntington  and  Stanford. 

Through  their  control  of  transportation  facilities  the  rail- 
road nabobs  were  extorting  whatever  freight  rates  they 
pleased  and  employing  discriminative  methods  against  the 
ordinary  shipper.  Largely  by  this  alliance  the  first  great 
Trust  —  the  Standard  Oil  Company  —  had  already  become 
a  great  power,  foreboding  the  time  when  trusts  of  all  kinds 
would  force  out  competition  and  efface  the  small  factory 
owner  and  the  small  distributor.  To  fight  this  developing 
power,  the  middle  class  formed  such  organizations  as  the 
Anti-Monopoly  League;  as  the  middle  class,  in  aggregate, 

47  This  telegram  was  published  in  the  New  York  Times  and  other 
newspapers  at  the  time. 


UNDER   CHIEF  JUSTICE   WAITE  559 

then  possessed  immense  resources  and  strength,  many  of  the 
leading  newspapers  supported  its  agitation.  It  desired 
judges  representing  middle-class  interests;  the  essential  ob- 
jection to  Matthews  was  that  he  was  an  instrument  of  the 
great  railroad  magnates. 

Hence  it  was  that  such  newspapers  as  the  New  York  Times, 
the  New  York  Sun  and  others  bitterly  denounced  the  ap- 
pointment of  Matthews.  The  New  York  Times,  in  an  edi- 
torial entitled,  "  His  Majesty,  Jay  Gould," 48  described  how 
Gould's  control  was  constantly  extending  over  railroads,  the 
Associated  Press  and  Congress.  "  There  would  still  remain 
the  Supreme  Court,"  went  on  the  editorial,  "  but  no  one  can 
suppose  that  he  will  long  permit  it  to  retain  its  independence. 
Even  if  he  cannot  secure  the  confirmation  of  Mr.  Stanley 
Matthews  he  will  sooner  or  later  contrive  to  have  any 
vacancies  that  may  occur  filled  in  such  »  way  as  to  provide 
against  the  contingency  of  decisions  hostile  to  his  interests. 
.  .  ."  The  New  York  Sun  declared  that  if  Matthews'  nomi- 
nation were  confirmed  it  would  be  equivalent  to  putting  Jay 
Gould  upon  the  Supreme  Court  Bench.  Other  newspapers 
contained  similar  editorials,  demanding  that  the  nomination 
be  withdrawn. 

The  Contest  Over  His  Appointment. 

Associate  Justice  Field,  Senator  Lamar,  Senator  Plumb  and 
others  were  moving  every  possible  influence  to  obtain  a  con- 
firmation. But  public  criticism  was  either  too  severe  just 
then  or  Senators  representing  antagonistic  railroad  groups 
were  opposed  to  Matthews,  as  being  too  much  the  creature  of 
Jay  Gould.49  Whatever  were  the  actuating  reasons,  the 
Senate  did  not  confirm. 

48  Published  February  23,  1881. 

49  As  illustrative  of  the  railroad  interests  of  a  majority  of  the  Sen- 
ators, the  case  of  Senator  William  B.  Allison,  of  Iowa,  may  be  men- 
tioned.    When    a    member    of    Congress,    in    1867,    Allison    had    been 


560  HISTORY  OF  THE   SUPREME  COUUT 

When,  however,  President  Garfield  succeeded  Hayes, 
Matthews  (who  was  a  relative  of  Garfield)  was  renominated, 
and  the  contest  again  begun.  Lamar,  as  a  member  of  the 
Judiciary  Committee,  renewed  his  efforts  for  Matthews ;  Sena- 
tors George  F.  Edmunds  and  David  Davis  led  in  opposing  the 
confirmation.  Edmunds,  long  the  chairman  of  the  Judiciary 
Committee,  was  himself  a  railroad  lawyer,  representing  the 
Michigan  Central  Railroad  and  other  railways.  Why  did  he 
oppose  Matthews?  The  conflict  of  the  magnates  with  one 
another  in  the  economic  field  had  its  reflex  in  the  political; 
certain  magnates  sought,  to  the  exclusion  of  other  magnates 
with  whom  they  were  at  war,  to  control  the  courts.  Senators 
representing  different  magnates  thus  took  opposite  sides  in 
favoring  or  opposing  this  or  that  measure  or  appointment. 

The  Senate  Judiciary  Committee,  on  May  9,  1881,  rejected 
Matthews'  appointment.  On  May  12,  1881,  the  report  of  this 
committee  was  taken  up  in  executive  session ;  and  after  a  long, 
acrimonious  and  stubborn  debate,  the  Senate  by  a  vote  of  24 
to  23  —  a  majority  of  one  vote  —  confirmed  the  appointment.50 
The  information  leaked  out  that  in  the  secret  session,  Sena- 
tors invidiously  pointed  out  that  measures  which  Matthews 
had  favored  or  opposed,  as  a  Senator,  would  come  up  before 
the  Supreme  Court  for  adjudication. 

vice-president  of  the  Sioux  City  and  Pacific  Railroad,  which  had  re- 
ceived a  land  grant  of  one  hundred  sections,  and  $16,000  of  Government 
bonds  for  each  mile  of  railroad.  In  the  construction  of  this  railroad, 
the  sum  of  $4,000,000  was  fraudulently  appropriated.  By  an  act  lobbied 
through  Congress,  in  loop,  when  Allison  was  still  a  powerful  Senator, 
the  Sioux  City  and  Pacific  Railroad  Company  was  virtually  released 
from  paying  back  more  than  one-tenth  the  sum  it  still  owed  the 
Government. —  Ex.  Documents  Nos.  181  to  252,  Second  Session,  Forti- 
eth Congress,  1867-68,  Doc.  No.  203 ;  Report  of  Pacific  Railway  Com- 
mission, Vol.  1 :  193,  etc. 

50  Appleton's  "  Annual  Cyclopedia  "  for  1881 :  p.  194.  Considering 
that  long  previously  the  Senate  had  established  an  unwritten  rule  that 
no  objection  should  be  made  to  any  appointee  who  ha^l  been  a  member 
of  the  United  States  Senate,  and  that  his  appointment  should  be 
promptly  confirmed  on  the  ground  of  "  Senatorial  courtesy,"  this  con- 
test over  Senator  Matthews'  appointment  was  unprecedented  and  re- 
markable. 


UNDER   CHIEF    JUSTICE    WAITE    .  561 


Justices  Gray  and  Blatchford. 

The  next  appointment,  made  in  December,  1881,  was  that 
of  Horace  Gray,  to  succeed  Justice  Clifford.  Gray  was  the 
grandson  of  William  Gray,  one  of  the  largest  shipowners  in 
New  England,  and  the  richest  man  in  Boston  in  1810.  Of 
the  activities  of  William  Gray  in  getting  bank  charters  we 
have  given  an  account  in  an  earlier  chapter.  Horace  Gray 
belonged  to  the  class  in  Boston  styling  themselves  the  old 
aristocracy ;  he  was  accused  of  being  obtrusively  snobbish ; 
judging  from  the  anecdotes  related  of  him,  he  was,  no  doubt, 
a  thorough  snob  and  a  formalist  of  the  most  pronounced 
and  provoking  type.51 

Graduated  from  Harvard,  Gray  traveled  extensively  in 
Europe,  and  was  once  presented  in  approved  form  at  the  court 
of  King  Louis  Phillipe.  Admitted  to  the  bar  in  1851,  he 

51  Such  a  stricture  seems  justified  by  these  and  other  anecdotes  re- 
lated of  him  when  he  was  a  judge  and  Chief  Justice  of  the  Supreme 
Court  of  Massachusetts: 

"  At  the  trial  of  a  certain  case  Judge  Gray  suddenly  summoned  a 
man  to  appear  at  a  particular  stage  of  the  proceedings.  The  man  re- 
sponded promptly  and  appeared  in  the  court  room  attired  as  at  his 
work  bench,  in  his  shirt  sleeves.  Judge  Gray,  after  commenting  severely 
upon  such  disrespect  to  the  court,  waived  the  urgency  of  the  pending 
cause,  and  directed  the  man  to  go  home  and  put  himself  in  the  proper 
garb  for  the  humble  part  which  he  was  to  take  in  the  doings  of  the 
august  tribunal."  (New  York  Times,  December  20,  1881.) 

"  His  tirades,"  said  the  Washington  correspondence  of  the  Philadel- 
phia Press,  "  against  trembling  deputy-sheriffs  and  frightened  witnesses 
have  been  told  over  and  over  again.  Only  two  lawyers  in  Boston  have 
ever  been  able  to  turn  the  tables  on  him.  One  was  Henry  E.  Payne; 
the  other  Sidney  Bartlett.  'If  your  honor  please — '  said  Payne  one 
day,  beginning  a  motion.  '  Sit  down,  sir ;  don't  you  see  that  I  am  talk- 
ing with  another  justice?  '  thundered  the  Chief  Magistrate.  Mr.  Payne 
took  his  hat  and  walked  out  of  the  courtroom.  A  half-hour  afterward 
a  messenger  reached  his  office  with  a  note  saying  that  Judge  Gray  was 
willing  to  hear  him.  '  I  am  not  willing  to  be  heard,'  answered  the  old 
lawyer,  '  until  Judge  Gray  apologizes.'  And  apologize  the  judge  had  to. 

" '  Mr.  Bartlett,'  said  the  Chief  Justice  one  afternoon,  throwing  him- 
self back  in  his  chair,  'that  is  not  law  and  it  never  was  law.'  The 
veteran  smiled,  and  looking  over  the  bench  said,  '  It  zvas  law,  your 
Honor,  until  your  Honor  just  spoke.'" — Republished  in  the  New  York 
Times,  issue  of  March  13,  1882. 


562  HISTORY   OF   THE    SUPREME    COURT 

became,  in  1854,  a  reporter  of  decisions  of  the  Massachusetts 
Supreme  Judicial  Court.  In  1864,  he  was  appointed  Asso- 
ciate Justice  of  that  court,  and  in  1873  became  its  Chief 
Justice.  He  was  extremely  tall  —  not  less  than  six  feet  six 
inches,  and  never  personally  popular.  The  circumstances  of 
his  receiving  a  large  addition  to  his  already  considerable  for- 
tune by  virtue  of  a  decision  of  the  Supreme  Court  of  the 
United  States  while  he  was  a  member  of  that  Court,  are 
related  in  a  subsequent  chapter. 

Shortly  after  Gray's  appointment,  Samuel  Blatchford,  of 
New  York,  was  appointed  to  succeed  Justice  Hunt.52 

Blatchford  was  the  son  of  Richard  Blatchford,  a  lawyer 
of  note  in  New  York  City  who,  in  1826,  became  the  financial 
agent  and  counsel  for  the  Bank  of  England.  He  later  acted 
in  the  same  capacity  for  the  Bank  of  the  United  States,  and 
adjusted  the  final  settlement  between  these  two  banks,  when 
the  charter  of  the  Bank  of  the  United  States  expired  in  1836. 
His  financial  dealings  were  large  for  his  day.  One  of  these 
dealt  with  the  North  American  Trust  and  Banking  Company. 
Although  having  several  millions  of  dollars  in  stocks  and 
bonds,  this  company,  soon  after  its  formation,  became  em- 
barrassed for  want  of  sufficient  funds,  and  resorted  to  varioun 
expedients  "  some,"  as  Judge  Roosevelt  decided,  "  at  least, 
of  a  questionable  character."  Two  mortgages  for  a  total  of 
$1,500,000  were  then  made  out  to  Richard  Blatchford  and 
others.  A  suit,  of  a  very  involved  nature,  was  brought  to 
have  these  mortgages  declared  invalid  on  the  ground  of  their 
being  fraudulent.53 

52  President  Arthur  had  first  offered  the  appointment  to  United  States 
Senator   Roscoe   Conkling  of   New   York.     Conkling   was   one   of   the 
counsel  for  the  New  York  Central  Railroad.     (See,  XXII  Wallace's, 
Reports,  621,  etc.)     After  Conkling  declined  the  appointment,  Arthur 
offered  it  to  Senator  Edmunds,  who,  as  we  have  seen,  was  also  a  noted 
railroad    attorney.     Upon    Edmunds'    declination,    Blatchford    was    ap- 
pointed and  he  accepted. 

53  Case  of  Curtis  vs.  Leavitt,  Barbour's  Supreme  Court  Reports  (N. 
Y.),  Vol.  XXVII:  312-378.     (Dec.,  1853.) 


UNDER    CHIEF    JUSTICE    WAITE  563 


Blatchford's    Interests   and   Associations. 

Samuel  Blatchford  became  private  secretary  to  Governor 
William  H.  Seward,  serving  until  1841,  and  in  1845  asso- 
ciated himself  as  a  law  partner  with  Seward  and  Christopher 
Morgan.  As  a  State  Senator,  Seward,  on  January  31,  1832, 
had  made  an  elaborate  defense  of  the  Bank  of  the  United 
States  in  reply  to  a  legislative  resolution  declaring  that  its 
charter  ought  not  be  renewed.54  Seward  was  counsel  for 
Erastus  Corning,  a  large  capitalist  of  Albany  who  was  the 
head  of  the  projectors  of.  the  Minnesota  and  Northwestern 
Railroad  Company  which,  in  1854,  by  fraud  and  corruption 
obtained  from  Congress  an  extens.ive  land  grant  of  900,000 
acres.55  Christopher  Morgan  was  the  brother  of  Edward 
Barber  Morgan,  a  founder  of  the  Wells-Fargo  Express  Com- 
pany and  of  the  United  States  Express  Company.  A  multi- 
millionaire, Christopher  Morgan  was  president  of  the  Wells- 
Fargo  Company,  and  a  director  for  many  years  of  the  United 
States  Express  Company.50 

In  1854,  Samuel  Blatchford  returned  to  New  York  City, 
and  formed  a  partnership  with  Clarence  A.  Seward,  son  of 
William  H.  Seward,  and  with  Burr  Griswold.  Their  prac- 
tice was  largely  one  for  railroad  and  express  companies.57 

54  Jenkins'  "Political  History  of  New  York"  (Edition  of  1849)  :  pp. 
3787380. 

55  Reports  of  Committees,  Thirty-third  Congress,  First  Session,  Vol. 
Ill:  Rep.  No.  352:  30.     For  full  details  from  the  official  documents  see 
"  History  of  the  Great  American  Fortunes,"  Vol.  Ill :  pp.  24-25,  44,  etc. 

50  Stimson's  "  Express  History,"  75,  462,  etc. 

57  Thus,  to  give  four  examples:  Clarence  A.  Seward  represented. 
William  B.  Dinsmore,  president  and  treasurer  of  the  Adams  Express 
Company  (XXXIV  Howard's  Practice  Reports  [N.  Y.],  1868:  p.  421), 
and  with  Benjamin  R.  Curtis,  former  Associate  Justice  of  the  Supreme 
Court  of  the  United  States,  he  represented  the  same  corporation  in 
Ellis  vs.  Boston,  Hartford  and  Erie  Railroad  (107  Mass.  Reports,  i  j : 
1869).  Seward  represented  the  Adams  Express  Company  in  the  suit 
of  Caldwell  against  that  company  (XXI  Wallace's  Reports,  143)  and 
he  was  counsel  for  the  Southern  Express  Company  in  the  action  of 
Vermilye  and  Company  against  that  corporation  (XXI  Wallace's  Re- 
ports, 265).  Many  other  instances  could  be  given. 


564  HISTORY   OF   THE    SUPREME   COURT 

Another  son  of  William  H.  Seward,  and  named  after  him, 
became  a  director  of  the  Southern  Central  Railroad  of  New 
York.  Blatchford  was  made  a  United  States  Circuit  Court 
judge ;  at  the  time  of  his  appointment  to  the  Supreme  Court 
of  the  United  States,  the  President  of  the  United  States  Ex- 
press Company  was  Thomas  C.  Platt,  for  more  than  twenty 
years  the  Republican  boss  of  New  York,  and  twice  United 
States  Senator  from  that  State.  The  campaign  contributions 
made  by  every  variety  of  corporation  during  the  long  period 
of  Platt's  dictatorship  were  so  enormous  and  long  continuing 
that  it  is  out  of  the  question  to  enter  here  into  a  narrative 
of  them.  Official  investigations,  to  which  we  shall  have  need 
of  referring,  disclose  the  particulars,  especially  in  the  case  of 
the  great  insurance  companies  which,  in  turn,  have  been  con- 
trolled by  the  railroad  magnates.58 

The  express  companies,  starting  with  little  capital,  had  ex- 
panded to  enormous  proportions  and  were  making  immense 
profits.  Dissatisfied,  the  shippers  were  continually  complain- 
ing; litigation  was  more  and  more  increasing;  and  the  express 
companies,  like  other  corporations,  sought  to  insure  themselves 
against  adverse  legislation  and  court  decisions. 

Between  the  express  monopoly  and  the  railroads  was  an 
intimate  alliance,  comprehending,  in  many  cases,  the  same 
capitalists.  Thus,  Leland  Stanford,  D.  O.  Mills  and  Charles 
F.  Crocker  were  directors  of  the  Wells-Fargo  Express  Com- 
pany at  the  time  of  Blatchford's  appointment  to  the  Supreme 
Court  of  the  United  States.  Blatchford  owned  stock  in  the 
Illinois  Central  Railroad  and  many  other  corporations.  In 
the  Tennessee  Bond  Cases,  involving  claims  to  unpaid  bonds 

58  This  item  is  one  of  many  signifying  the  political  debauchery  by 
corporations :  The  New  York  Legislative  Insurance  Committee,  in  its 
extensive  report  in  1906,  stated  that  for  many  years  the  Equitable  Life 
Assurance  Society  had  been  giving  $30,000  annually  to  the  New  York 
State  Republican  Committee  (controlled  by  Platt)  and  that  all  of  the 
other  insurance  companies  variously  did  the  same,  contributing  to 
the  campaign  funds  of  both  the  Republican  and  Democratic  parties, 
State  and  National. —  Vol.  X  :  10,  62,  etc.,  etc. 


UNDER    CHIEF   JUSTICE    WAITE  565 

claimed  by  the  Louisville  and  Nashville  Railroad  and  numer- 
ous other  railroads  Blatchford  and  Justice  Stanley  Matthews 
were  disqualified  from  sitting  because  of  their  interest.59  To 
such  an  extent  did  the  railroad  and  express  company  interest 
become  merged  that  the  principal  ownership  of  the  express 
monopoly  gradually  became  vested  in  J.  P.  Morgan,  the  Van- 
derbilts,  the  Goulds,  the  Standard  Oil  Company,  the  Harri- 
man  estate,  Lewis  Cass  Ledyard  (a  grandson  of  Lewis  Cass) 
and  in  other  railroad  magnates. 

So  well  did  the  express  companies  succeed  in  warding  off 
hostile  legislative  and  court  action,  that  the  recent  petition 
of  the  Merchants'  Association  of  New  York  and  of  the 
Chambers  of  Commerce  of  Chicago,  Philadelphia,  Boston,  De- 
troit, St.  Louis,  Denver  and  other  cities  to  the  Interstate  Com- 
merce Commission  sets  forth  that  the  annual  profits  of  the 
express  companies  have  been  150  per  cent,  in  addition  to  which 
great  cash  reserves  are  held. 

Validation  of  the  Vast  Maxwell  Land  Claim. 

Of  the  large  body  of  decisions  handed  down  by  the 
Supreme  Court  of  the  United  States  during  the  last  years  of 
Waite's  Chief  Justiceship,  nearly  all  were  uniformly  favora- 
ble to  railroad  and  other  corporations. 

It  was  under  Waite  that  the  Supreme  Court  validated  the 
enormous  Maxwell  private-land  grant.  This  claim  had 
originally  been  asserted  by  Charles  Beaubien  and  Guadalupe 
Miranda,  claiming  title  under  a  grant  said  to  have  been  made 
by  the  Mexican  Governor  Armijo  in  1841.  On  September 
15,  1857,  the  United  States  Surveyor  General  of  New  Mexico 
had  reported  the  grant  as  embracing  96,000  acres.  One  L. 
B.  Maxwell  bought  the  claim,  and  contended  that  it  comprised 

59  In  the  Chicago  Lake  Front  case  affecting  the  Illinois  Central  Rail- 
road's title,  Blatchford  could  not  sit  because  he  owned  stock.  For  the 
Tennessee  Bond  Cases,  see,  V  Supreme  Court  Reporter,  995. 


566  HISTORY   OF    THE    SUPREME    COURT 

nearly  2,000,000  acres.  Holding  that  the  old  Mexican  laws 
had  limited  the  area  granted  to  any  one  individual  to  48,000 
acres,  the  Commissioner  of  the  General  Land  Office,  upheld  by 
the  Secretary  of  the  Interior,  refused,  in  1869,  to  certify  more 
than  96,000  acres.00 

One  of  the  principal  owners  of  the  claim  was  Stephen  B. 
Elkins,  a  conspicuous  Republican  politician,  and  a  delegate 
in  Congress.  Elkins'  efforts  at  Washington  bore  fruit.  A 
new  survey  was  ordered  by  the  Land  Office ;  one  of  the  sur- 
veyors was  Elkins'  brother,  John  T.  Elkins.  The  surveyors 
reported  the  grant  as  embracing,  in  all,  1,714,764.94  acres  in 
New  Mexico  and  extending  into  Colorado.  On  May  19,  1879, 
the  General  Land  Office  gave  a  quit  claim  for  the  whole  of 
this  area.  It  was  then  mortgaged  to  a  syndicate  of  Holland 
capitalists  for  the  sum  of  £700,000  in  sterling  money  and 
Dutch  currency.61 

On  August  25,  1882,  the  Government  brought  suit  to  have 
the  grant  declared  void.  Suing  the  Maxwell  Land  Grant 
Company,  the  Pueblo  and  Arkansas  Valley  Railroad  Com- 
pany and  the  Denver  and  Rio  Grande  Railway  Company,  the 
Government  in  five  specifications  declared  that  the  grant, 
under  the  laws  of  Mexico,  could  not  have  been  for  more  than 
96,000  acres  of  land,  and  that  the  patent  for  its  enormous 
enlargement  had  .been  obtained  by  a  conspiracy  of  fraud  and 
deceit  practiced  upon  the  Land  Office.02 

But  on  April  18,  1887,  the  Supreme  Court  of  the  United 
States  validated  the  whole  claim  for  1,714,764.94  acres,  bas- 
ing its  decision  upon  a  disingenuous  act  sneaked  through 
Congress  in  1860.  That  act,  joined  with  another  act  passed 
in  the  same  year,  allowed  surveys  to  be  made  at  the  expense 

60  "  Land  Titles  in  New  Mexico  and  Colorado,"  House  Reports,  First 
Session,  Fifty-Second  Congress,  1891-92,  Vol.  IV:  Report  No.  1253. 
(Committee  on  Private  Land  Claims.) 

01  House  Reports,  1891-1892,  Vol.  IV,  Report  No.  1353 :  7. 

62  See  the  bill  of  particulars  reciting  the  history  of  the  frauds  in  VII 
Supreme  Court  Reports,  1017,  and  121  U.  S.  Reports,  327. 


UNDER    CHIEF   JUSTICE    WAITE  567 

of  "  settlers,"  and  provided  that  the  amounts  deposited  by 
"  settlers  "  should  be  received  as  part  payments  for  the  lands. 
These  acts  bore  no  reference  whatever  to  the  Maxwell  grant; 
successive  Land  Commissioners  had  pointed  out  that  their 
only  object  was  to  authorize  fraudulent  surveys ;  but  the 
Supreme  Court  seems  to  have  discovered  that  they  allowed 
a  grant  of  96,000  acres  to  be  extended  to  cover  nearly  2,000,000 
acres.63 

The  decision  was  much  denounced.  Stephen  B.  Elkins, 
the  chief  beneficiary,  married  a  daughter  of  United  States 
Senator  Henry  G.  Davis  of  West  Virginia  and  financed  the 
construction  of  a  number  of  railroads.  He  had  built  for  him 
a  palace-like  castle  in  the  town  bearing  his  name  in  West 
Virginia ;  he  became  a  United  States  Senator,  in  1895 ;  and  he 
died  a  multimillionaire. 


Justice  Field  Protects  Leland  Stanford. 

At  about  the  time  when  this  decision  was  handed  down, 
Associate  Justice  Field  was  subjected  to  insinuating  criticisms 
for  his  actions  in  several  matters.  The  Pacific  Railway  Com- 
mission was  investigating  the  consecutive  frauds  and  thefts 
of  the  promoters  and  manipulators  of  the  Pacific  railroads. 
On  July  26,  1887,  the  Commission,  when  in  San  Francisco, 
issued  an  order  requiring  Leland  Stanford  to  testify.  The 
particular  questions  the  Commission  pointedly  had  put  to 
Stanford  were  these : 

What  part  of  a  certain  voucher  for  $171,000  that  had  been 
made  out  by  him  (Stanford)  had  been  used  for  the  purpose 
of  influencing  legislation?  (This  $171,000  —  or  to  be  exact, 
$171,781.89  —  had  been  paid  out  by  Stanford  in  cash,  on 
December  31,  1875.) 

03  The  full  narrative  of  this  grant,  thus  validated  to  comprise  a 
colossal  area,  is  related  in  the  "  History  of  the  Great  American  For- 
tunes/' Vol.  Ill ;  324-334. 


568  HISTORY   OF   THE    SUPREME   COURT 

What  lawyers  had  been  in  the  habit  of  attending  the  Legis- 
lature with  him  (Stanford)  ? 

Did  he  (Stanford)  ever  give  away  any  portion  of  certain 
exhibited  vouchers  to  S.  T.  Gage  "to  influence  legislation? 
(Gage  was  one  of  the  directors  of  the  Southern  Pacific  Rail- 
way Company.) 

Did  he  (Stanford)  ever  give  any  money  to  W.  B.  Carr  for 
the  purpose  of  influencing  legislation  in  the  California  Legis- 
lature ? 

Upon  Stanford's  refusal  to  answer  these  questions,  the 
Pacific  Railway  Commission  applied  to  the  United  States  Cir- 
cuit Court  for  an  order  compelling  him  to  testify. 

Field  was  then  in  San  Francisco,  presiding  over  the  Circuit 
Court,  for  until  the  act  creating  the  United  States  Circuit 
Court  of  Appeals  was  passed,  each  Associate  Justice  of  the 
Supreme  Court  of  the  United  States  was  assigned,  for  a  part 
of  the  time,  to  a  certain  circuit.  The  United  States  Circuit 
Court  at  San  Francisco  was  composed  of  Field,  and  Judges 
Lorenzo  Sawyer,  Sabin  and  Hoffman.  Field,  as  we  have  seen, 
had  been  appointed  to  the  Supreme  Court  upon  the  personal 
solicitation  of  Stanford.  Judges  Sawyer  and  Sabin  owed 
their  seats  to  Stanford  and  Huntington.  In  fact,  Huntington 
testified  before  the  Pacific  Railway  Commission  that  he  and 
his  associates  made  it  a  system  to  control  the  judicial,  as  well 
as  the  legislative  and  executive,  departments  of  government. 
Judge  Hoffman  had  been  on  the  bench  before  Stanford  and 
Huntington  had  acquired  power ;  his  decisions  in  the  private 
land-claim  cases  had  revealed  him  as  an  honest  judge. 

On  August  29,  1887,  the  Circuit  Court  gave  its  decision, 
written  by  Justice  Field  and  Judge  Sawyer,  denying  the  appli- 
cation of  the  Commission,  on  the  ground  that  the  act  creating 
the  Commission  did  not  authorize  compulsory  testimony. 
Judge  Hoffman  dissented.  "  The  decision  of  the  Circuit 
Court  of  the  United  States  in  California,"  reported  the  Pacific 
Railway  Commission,  "  made  it  impossible  for  this 


UNDER    CHIEF   JUSTICE   WAITE  569 

sion  to  obtain  answers  to  the  questions  which  Congress  had 
directed  to  be  put."  64  As  to  the  extent  of  the  corruption  car- 
ried on  by  Huntington  and  Stanford,  the  Commission  re- 
ported, "  There  is  no  room  for  doubt  that  a  large  portion  of 
$4,818,535  was  used  for  the  purpose  of  influencing  legisla- 
tion, and  preventing  the  passage  of  measures  deemed  hostile 
to  the  interests  of  the  company,  and  for  the  purpose  of  in- 
fluencing elections."  G5 

During  all  of  these  years,  Field  was  intimate  with  Stanford 
and  frequently,  when  Stanford  was  a  United  States  Senator, 
dined  at  his  house  in  Washington.  In  the  writings  of  Justice 
Bradley  there  is  published  a  letter,  dated  March  23,  1891, 
from  Justice  Field  to  Senator  James  G.  Fair,  a  California 
millionaire,  stating  that  he  (Field)  had  dined  the  previous 
evening  at  General  Schofield's,  and  that  among  those  present 
were  the  President,  Chief  Justice  Fuller,  Senators  Stanford, 
Sherman  and  many  other  high  functionaries.06 

While  on  the  subject  of  the  corrupt  methods  of  Stanford 
it  will  be  pertinent  to  refer  here  to  the  report  of  the  San 
Francisco  Grand  Jury,  of  August,  1891.  This  body  called 
the  "  Wallace  Grand  Jury,"  was  impaneled  under  Judge 
Wallace  to  investigate  municipal  corruption,  particularly  the 
debauching  of  politics  by  the  Southern  Pacific  Railway. 
Gage  refused  to  testify,  as  did  other  railway  directors,  and 
Buckley,  the  political  boss  of  San  Francisco,  fled  from  the 
Grand  Jury's  jurisdiction.  When  Stanford  was  summoned 
to  testify,  the  Supreme  Court  of  California  was  instantly  ap- 
pealed to  by  the  railroad's  lawyers.  That  court,  by  a  vote 
of  four  to  three,  held  that  the  Grand  Jury  was  improperly  con- 

64  Report  of    the    Pacific    Railway    Commission    (Ex.    Doc.    No.    51, 
Fiftieth  Congress,  First  Session),  Vols.  I  and  II:  121,  and  Vol.  VII: 
4215. 

65  Ibid.,  Vol.  1 :  84. 

06 "  Miscellaneous  Writings  of  Joseph  Bradley,"  pp.  350-351.  The 
purpose  of  the  letter  was  an  enquiry  concerning  the  effectiveness  of 
hydraulic  mining,  over  which  an  academic  discussion  had  taken  place  at 
the  dinner. 


57O  HISTORY   OF   THE    SUPREME    COURT 

stituted,  "  because  of  an  irregularity  in  the  appointment  of  the 
elisor."  °7 

A  Virulent  Attack  by  Justice  Field. 

The  other  occasion  on  which  Justice  Field's  course  aroused 
critical  comment  was  in  the  case  of  an  eleven-league  tract 
in  California  held  by  the  San  Jacinto  Tin  Company,  the  River- 
side Canal  Company  and  the  Riverside  Land  and  Irrigation 
Company. 

This  tract  was  confirmed  to  de  Aguirre  by  the  Board  of 
Land  Commissioners  and  the  District  Court  in  1867.  In  1883 
the  Attorney  General  of  the  United  States  brought  suit  to  have 
the  patent  declared  void.'  The  Government  alleged  "  that 
throughout  the  whole  transaction,  from  the  beginning  of  the 
effort  to  have  this  survey  made  until  its  final  completion  and 
the  issue  of  the  patent,  all  of  the  proceedings  were  dictated 
by  fraud  and  all  of  the  officers  of  the  government  below  the 
Secretary  of  the  Interior  who  had  anything  to  do  with  it  were 
parties  to  that  fraud  and  to  be  benefited  by  it."  The  Govern- 
ment set  forth  that  Surveyor-General  Upson ;  his  chief  clerk, 
Con  way;  Thompson,  the  deputy  surveyor  for  California,  and 
Joseph  H.  Wilson,  the  Commissioner  of  the  General  Land 
Office,  knew  that  the  tract  contained  tin  ore,  and  that  they 
"  were  all  interested  and  part  owners  of  the  claim  at  the 
time  this  survey  was  made,  and  at  the  very  time  they  acted 
in  reference  to  its  final  confirmation." 

Yet  the  Supreme  Court  of  the  United  States  (Justice  Miller 
writing  its  decision)  accepted  the  depositions  and  reports  of 
the  very  officials  who  had  thus  been  implicated!  Wilson  had 
made  a  "  full  report,"  the  Supreme  Court  said,  in  1867,  and 
this  report  it  assumed  to  receive  as  authentic,  notwithstanding 

07  See,  Report  of  Wallace  Grand  Jury,  contained  in  "  Report  on  the 
Causes  of  Municipal  Corruption  in  San  Francisco,"  etc.  Published  by 
order  of  the  Board  of  Supervisors,  etc.,  San  Francisco,  1910:  p.  9.  In 
this  document,  comprising  the  full  report  of  the  Oliver  Grand  Jury  of 
1908,  the  presentment  of  the  Wallace  Grand  Jury  is  reprinted. 


UNDER    CHIEF    JUSTICE    WAITE  571 

the  fact  that  the  Government  now  showed  Wilson  to  have 
been  interested.  The  Supreme  Court  pretended  not  to  go 
behind  the  formal,  official  acts  of  the  Government  officers  dis- 
closed as  promoters  and  beneficiaries  of  the  fraud.  It  thus 
consistently  followed  the  long  line  of  precedents  begun  by 
Marshall  in  ignoring  motives  and  acts  of  fraud  and  corrup- 
tion. Although  conceding  that  Conway  had  bought  the  claim, 
and  had  organized  a  corporation  to  mine  tin  ore,  the  Supreme 
Court,  nevertheless,  held  that  the  fraud  was  not  proved,  and 
on  March  19,  1888,  decided  against  the  Government.08 

Justice  Field,  however,  was  not  content  with  concurring 
in  this  decision.  He  went  out  of  his  way  to  indulge  in  a 
savage  attack  upon  the  Attorney-General,  accusing  him  of 
bringing  the  suit  at  the  instigation  of  a  third  party  and  of 
using  the  Government  machinery  for  ulterior  reasons.09  It 
was  remarked  that  if  the  Supreme  Court  took  the  position  that 
it  was  not  at  liberty  to  inquire  into  motives  of  legislature  or 
official,  no  matter  what  fraud  or  corruption  lay  behind,  what 
right  had  a  Supreme  Court  Justice  to  take  advantage  of  his 
power  to  assail  the  motives  of  the  Attorney-General? 

Lamar  Succeeds  Matthews. 

The  last  appointment  to  the  Supreme  Court  made  during 
the  period  when  Waite  was  Chief  Justice  seemed  to  provoke 
almost  as  much  criticism  as  that  of  Stanley  Matthews.  As 
Woods'  successor  as  Associate  Justice,  President  Cleveland 
in  1888,  appointed  Lucius  Q.  C.  Lamar  of  Mississippi.  Born 
in  1825,  Lamar  had  been  in  Congress  in  1857-1861,  had 
served  in  the  Confederate  military  and  diplomatic  service, 
was  a  member  of  Congress  after  the  Civil  War,  and  was 
elected  a  United  States  Senator  in  1873.  In  the  Senate  he 
was  chairman  of  the  Standing  Committee  on  the  Pacific 
railroads;  and  he  had,  as  we  have  related,  been  the  principal 

68  125  U.  S.  Reports,  288.  «9  Ibid.,  307. 


572  HISTORY  OF   THE   SUPREME   COURT 

supporter  of  Matthews'  bill  in  favor  of  the  Texas  Pacific 
Railroad.  Even  his  eulogistic  biographer  describes  his  zeal  in 
working  for  the  interests  of  that  railroad.70  In  addition  to 
being  the  chief  and  indefatigable  pusher  of  Texas  Pacific 
Railroad  measures,  Lamar  was  an  extensive  railroad  stock- 
holder and  a  director  of  the  Mississippi  Central  Railroad.71 


The   Prevailing   Corruption. 

A  sufficient  indication  of  the  corruption  used  by  both  the 
promoters  and  the  antagonists  of  the  Texas  Pacific  Railroad 
bill  was  supplied  by  the  subsequent  publication  of  the  cele- 
brated Colton  letters  written  by  Collis  P.  Huntington  to  his 
confidant  and  one  of  his  partners,  General  David  D.  Colton. 
Scott,  of  the  Pennsylvania  Railroad,  then  controlled  the 
Texas  Pacific  Railroad  project,  while  Huntington  was  one 
of  the  Central  and  the  Southern  Pacific  railroads  group. 
These  two  sets  of  capitalists  came  into  collision  over  the  divi- 
sion of  the  spoils  of  the  Southwest.  Both  caused  bills  to  be 
introduced  and  each  sought  to  corrupt  Congress. 

"  Scott,"  wrote  Huntington,  on  January  29,  1876,  "  is 
making  a  terrible  effort  to  pass  his  bill,  and  he  has  many  ad- 
vantages with  his  railroad  running  out  from  Washington  in 

70  Mayes'  "  Lucius  Q.  C.  Lamar,  His  Life,  Times  and  Speeches,  1825- 
1893."  Mayes  tells  how  Lamar  supported  the  measures  for  the  benefit 
of  that  railroad  and  quotes  a  laudatory  account,  written  by  William 
Preston  King  in  1879,  which  went  the  rounds  of  the  press:  "Senator 
Lamar  has  been  recognized  as  the  zealous  friend  of  all  measures  for 
internal  improvements  in  the  South,  especially  improvements  of  the 
levees  of  the  Mississippi  and  for  the  Texas  Pacific  Railroad.  He  has 
been  a  very  effective  and  eloquent  champion  of  this  last-named  enter- 
prise."—p.  372. 

An  examination  of  the  record  shows  that  Lamar  made  the  principal 
speech  for  the  Texas  Pacific  Railway.  Pointing  out  that  the  Northern 
Pacific  Railroad  had  received  about  47,000,000  acres  of  land,  and  the 
Union  and  the  Central  Pacific  roads  50,000,000  acres,  he  pleaded  that 
the  Texas  Pacific  should  be  allowed  to  retain  its  land  grant  of  18,000,000 
acres. —  The  Congressional  Record,  Vol.  7,  Part  4,  Forty-fifth  Congress, 
Second  Session,  1878:  pp.  3653-3658. 

71 "  Poor's  Railroad  Manual,"  for  1869-70:  p.  18, 


UNDER   CHIEI?   JUSTICfi   WAITE  573 

almost  every  direction,  on  which  he  gives  Free  Passes  to 
everyone  who  can  help  him  ever  so  little.  It  has  cost  money 
to  fix  things,  so  I  know  his  bill  would  not  pass.  I  believe 
with  $200,000  we  can  pass  our  bill."  On  March  6,  1876, 
Huntington  wrote  that  "  the  Railroad  Committee  of  the  House 
was  set  up  for  Scott,  and  it  has  been  a  very  difficult  matter 
to  switch  a  majority  of  the  Committee  from  him,  but  I  think 
it  has  been  done." 

To  one  of  his  associates  Huntington  wrote  further,  on 
November  u,  1876,  "I  am  glad  to  learn  that  you  will  send 
to  this  office  $2,000,000  by  the  first  of  January."  Hunting- 
ton,  in  one  of  this  series  of  letters,  dated  December  17, 
1877,  wrote:  "Jay  Gould  went  to  Washington  about  two 
weeks  since  and  I  know  saw  Mitchell,  Senator  from  Oregon. 
Since  which  time  money  has  been  used  very  freely  in  Wash- 
ington. .  .  .  Gould  has  large  amounts  in  cash,  and  he 
pays  it  without  stint  to  carry  his  points."  On  May  3,  1878, 
Huntington  informed  his  partners:  "The  T.  and  P.  (Texas 
Pacific)  folks  are  working  hard  on  their  bill,  and  say  they 
are  sure  to  pass  it,  but  I  do  not  believe  it.  They  offered  one 
member  of  Congress  $1,000  cash  down,  $5,000  when  the  bill 
was  passed,  and  $10,000  of  the  bonds  when  they  got  them 
if  he  would  vote  for  the  bill."  72  In  the  end  both  groups  ob- 
tained the  legislation  sought ;  and  that  the  Texas  Pacific  capi- 
talists eventually  succeeded  was  due  greatly  to  the  efforts  of 
Senators  Matthews  and  Lamar. 

As  we  have  seen,  Senator  Lamar  was  Matthews'  most  vig- 
orous and  supple  defender  during  the  opposition  to  Matthews' 

72  The  original  name  of  the  company  was  the  Texas  Pacific ;  later  it 
was  changed  to  read  Texas  and  Pacific  Railway  Company.  There  were 
a  large  number  of  the  Colton  letters ;  they  came  to  light  in  a  lawsuit 
arising  over  the  plundering  of  Colton's  estate  by  Huntington,  Stanford 
and  Crocker,  and  were  published  in  a  pamphlet,  "  Driven  From  Sea  to 
Sea,"  by  C.  C.  Post.  "  It  is  impossible,"  reported  the  Pacific  Railroad 
Commission  (Vol.  I:  121),  "to  read  the  evidence  of  C.  P.  Huntington 
and  Leland  Stanford  and  the  Colton  letters  without  reaching  the  con- 
clusion that  very  large  sums  of  money  have  been  improperly  used  in 
connection  with  legislation." 


574  HISTORY   OF   THE    SUPREME   COURT 

confirmation  as  Associate  Justice.  First  selecting  Lamar  as 
Secretary  of  the  Interior, —  the  very  office  having  jurisdiction 
over  railroad  land  patents  —  President  Cleveland  had  then 
nominated  him  to  succeed  Matthews.  Cleveland  himself  had 
been  a  railroad  lawyer.  Three  main  objections  to  the  con1 
firmation  of  Lamar's  nomination  were  agitated :  his  long  disuse 
of  legal  practice,  his  want  of  judicial  experience,  and  his 
notorious  activity  as  a  railroad  legislator.  It  is  needless  to 
say  that  his  nomination  was  confirmed. 

The  Railroad  Power  in  Control. 

All  except  two  of  the  Justices  now  constituting  the  Supreme 
Court  of  the  United  States  had  been  active  railroad  attorneys 
or  railroad  stockholders,  directors  or  legislative  railroad 
lobbyists.  The  Supreme  Court  as  absolutely  reflected  the 
dominant  section  of  the  capitalist  class  as  it  did  during  the 
eras  of  the  control  by  the  landed  interests  and  the  slave 
power. 

From  1879  to  1884  the  stupendous  amount  of  $3,360,000,- 
ooo  of  new  railroad  securities  had  been  listed.  Edward 
Atkinson,  a  conservative  political  economist,  testified  before 
the  United  States  Senate  ("  Cullom ")  Committee  in  1886, 
that  the  railroads  formed  about  one-fifth  of  the  total  wealth 
of  the  country.  As  early  as  1870  the  railroad  magnates  had 
begun  to  form  pools  for  the  partition  of  traffic  and  to  main- 
tain rates  at  a  certain  point.  The  organization  by  the  rail- 
road power  of  the  Southwestern  Railway  Rate  Association 
and,  in  1884,  °f  tne  Western  Freight  Association  called  forth 
the  charge  by  the  middle-class  business  elements  that  they  were 
conspiracies  to  restrain  trade  and  to  fix  extortionate  rates. 
This  was  true;  but  the  essence  of  the  situation  was  that  the 
capitalist  system  was  in  a  state  of  transition  from  the  old 
competitive  stage  to  a  newer  state  of  centralized  control  and 
operation.  Nevertheless,  the  still  powerful  middle  class  sue- 


UNDER    CHIEF   JUSTICE    WAITE  575 

ceeded  in  getting  anti-pool  and  anti-trust  laws  passed  by  Con- 
gress. In  this  great  duel  between  the  two  classes  everything 
then  depended  upon  the  construction  that  the  Supreme  Court 
of  the  United  States  would  put  upon  those  laws. 


Dying,  Waite  is  Rushed  to  the  Court  Room. 

For  a  considerable  time  Chief  Justice  Waite  had  suffered 
from  ailments  arising  from  the  liver  and  spleen,  complicated 
with  a  painful  stomach  trouble.  In  March,  1888,  he  was  ob- 
viously in  a  sinking  condition.  But  certain  cases  concerning 
a  great  contest  over  the  priority  and  legality  of  the  Bell  Tele- 
phone patent  were  to  be  decided ;  and  in  order  that  Waite's 
vote  should  not  be  lost  the  extraordinary  step  was  taken  of 
rushing  a  dying  man  to  the  Supreme  Court  chambers. 

The  principal  competitor  of  the  Bell  Telephone  was  the  Pan- 
Electric  Telephone  Company.  This  company  charged  its  op- 
ponents, the  Bell  Telephone  Company,  with  having  resorted  to 
a  campaign  of  bribery  by  means  of  money  or  gifts  of  stock, 
in  order  to  get  its  patent  claims,  laws,  franchises  and  decisions. 
On  the  other  hand,  the  testimony  before  a  Congressional  Com- 
mittee showed  that  to  get  the  Government  officials  to  move  in 
the  courts  for  the  vacating  of  the  Bell  patents,  large  blocks  of 
stock  were  distributed  by  the  Pan-Electric  Telephone  Com- 
pany to  influential  Representatives  and  Senators,  some  of 
whom  became  directors  of  the  company.  It  was  also  charged 
that  United  States  Attorney-General  Garland,  who  had  the 
practical  power  of  deciding  whether  or  not  suits  to  vacate  the 
Bell  patent  should  be  brought,  held  $10,000,000  of  Pan-Electric 
stock  for  which  he  had  not  paid  a  dollar.73  In  fact,  a  contract 
was  produced  before  the  Congressional  Committee  proving  that 
on  August  4,  1875,  the  Pan-Electric  Company  and  the  Na- 

73  See,  House  Miscellaneous  Documents,  Forty-ninth  Congress,  1885- 
86,  Vol.  XIX. — "  Testimony  taken  by  the  Committee  Relating  to  the 
Pan-Electric  Telephone  Company." 


576  HISTORY  OF  THE   SUPREME  COURT 

tional  Improved  Telephone  Company  of  Louisiana  had  agreed 
in  writing  that  they  would  begin  suit  against  the  American 
Bell  Telephone  Company,  provided  they  could  obtain  the  as- 
sent of  the  Attorney-General  of  the  United  States.74 


The  Telephone  Cases  Decided. 

There  were  five  actions  against  the  American  Bell  Tele- 
phone Company,  revolving  around  the  point  whether  Bell  or 
Dollbear  was  the  inventor  of  the  telephone.  When  the  de- 
cision favorable  to  the  Bell  patent  was  reached,  only  eight 
Justices  were  on  the  bench,  Lamar  not  having  taken  his  seat 
when  the  long  and  complicated  arguments  had  been  made.  Of 
the  eight,  Justice  Gray  refrained  from  taking  part  because  of 
interest.  This  left  seven  Justices,  of  whom  Waite,  Miller, 
Blatchford  and  Matthews  concurred  in  a  majority  opinion  fa- 
vorable to  Bell.  Bradley,  Field  and  Harlan  dissented  from 
some  of  the  conclusions  reached  by  the  majority.75 

"  The  telephone  decision,"  says  a  contemporary  account, 
"  had  been  written  by  the  Chief  Justice,  but  he  was  too  ill  to 
read  it  from  the  Bench,  and  that  duty  was,  therefore,  performed 
by  Justice  Blatchford.  Special  care  was  taken  that  no  evidence 
of  the  Chief  Justice's  illness  should  appear,  and  none  of  the 
throng  that  heard  the  decision  read  suspected  the  real  reason 
why  it  was  announced  by  Justice  Blatchford.  As  soon  as  pos- 
sible after  the  reading,  Justice  Waite  left  the  Bench,  and  was 
hurriedly  driven  home.  .  .  .  He  went  to  bed  and  since  then 
has  been  a  very  sick  man."  70 

The  Chief  Justice  died  on  the  very  day  on  which  this  ac- 
count was  published  —  March  23,  1888.  He  had  lived  in 

74  Ibid.,  574.     Isham  G.  Harris,  for  many  years  a  United  States  Sen- 
ator from  Tennessee,  was  Vice-President  of  the  Pan-Electric  Telephone 
Company. 

75  126  U.  S.  Reports,  531. 

70  Washington  despatch,  New  York  Times,  March  23,  1888. 


UNDER   CHIEF  JUSTICE   WAITE  577 

rather  aristocratic  style  in  Washington.  After  his  death  the 
newspapers  reported  that  his  estate  was  so  small  that  members 
of  the  Washington  Bar  and  others  deemed  it  advisable  to  raise 
a  fund  for  his  widow. 


CHAPTER  XIV 
THE   SUPREME   COURT   UNDER   CHIEF   JUSTICE  FULLER 

Following  Waite's  death,  considerable  speculation  was  rife 
as  to  who  would  be  appointed  his  successor.  President  Cleve- 
land finally  chose  Melville  W.  Fuller,  a  Chicago  lawyer,  ob- 
scure so  far  as  public  reputation  went  and  without  judicial  ex- 
perience but  well  and  favorably  known  in  corporation  circles. 
Like  Cleveland,  Fuller  was  a  Democrat,  but  he  was  urged  for 
the  Chief  Justiceship  by  both  Republican  and  Democratic  Sena- 
tors and  capitalists. 

Fuller's  Sponsors  and  Backers. 

Among  those  particularly  active  at  Washington  assiduously 
working  for  his  appointment  was  Colonel  W.  C.  Goudy,  an 
attorney  for  a  large  number  of  varied  corporations.  Goudy 
was  counsel  for  the  South  Chicago  Railway  Company,  the 
Washburn  and  Moen  Manufacturing  Company,  the  Chicago, 
Burlington  and  Quincy  Railroad,  the  Illinois  Central  Railroad, 
the  Indiana  Banking  Company,  the  Chicago  Dock  Company, 
and  he  was  general  counsel  for  the  Chicago  and  Northwestern 
Railway  Company,  for  the  Fremont  and  Elkhorn  Railroad,  and 
for  the  Sioux  City  and  Pacific  Railroad.1 

Senator  John  C.  Spooner,  of  Wisconsin,  a  Republican,  was 
energetic  in  Fuller's  behalf ;  of  Spooner's  activities  as  a  railroad 
lawyer  we  have  given  an  adequate  glimpse  in  the  description 
of  the  case  of  Schulenberg  vs.  Harriman  in  the  preceding  chap- 
ter. The  selection  of  Fuller  was  also  approved  by  Robert  T. 

1 "  Poor's  Railroad  Manual,"  for  1800:  pp.  1297  and  1300. 

578 


UNDER    CHIEF   JUSTICE   FULLER  579 

Lincoln,  former  Secretary  of  War,  and  for  many  years  presi- 
dent of  the  Pullman  Company,  of  Chicago.  Another  of  the 
many  functionaries  strongly  pushing  Fuller's  appointment  was 
the  millionaire  United  States  Senator  Charles  B.  Farwell,  of 
Illinois,  a  partner  in  the  large  Chicago  dry  goods  establishment 
with  his  brother,  John  V.  Farwell.  This  house  had  made  great 
profits  on  contracts  during  the  Civil  War ;  by  the  abundant  in- 
fusion of  money  into  politics  Charles  B.  Farwell  had  wrested 
an  election  to  Congress,  and  then  an  election  as  United  States 
Senator. 

A  Transaction  of  the  Farwells. 

Aside  from  their  other  political  and  corporate  transactions, 
the  Farwells  had  but  recently  come  conspicuously  into  public 
attention  by  reason  of  the  successive  steps  by  which  they  had 
obtained  the  title  to  3,000,000  acres  of  public  land  in  Texas. 

During  the  session  of  the  Texas  Constitutional  Convention, 
at  Austin,  on  November  i,  1875,  a  clever  attempt  was  made  to 
pass  a  resolution  for  the  setting  apart  of  5,000,000  acres 
of  public  lands  in  exchange  for  the  building  of  a  new  State 
Capitol.  This  resolution  was  defeated,  but  on  November  20 
a  constitutional  provision  was  finally  adopted  after  much  skill- 
ful lobbying,  setting  apart  3,000,000  acres  for  the  purpose.2 

On  February  20,  1879,  the  Texas  Legislature  passed  an  act 
appropriating  3,050,000  acres  in  the  counties  of  Deaf  Smith, 
Farmer,  Castro,  Lamb,  Bailey,  Hockley,  Dallain,  Hartley, 
Cochran  and  Oldham  to  be  turned  over  to  the  contractors  for 
the  new  building.  This  contract  was  made  on  January  18, 
1882,  with  Matthew  Schnell,  of  Rock  Island,  Illinois.  In  the 
same  month,  Schnell  assigned  his  entire  interest  to  Charles  B. 
Farwell,  John  V.  Farwell,  Amos  C.  Babcock  and  others  com- 
prising the  firm  of  Taylor,  Babcock  and  Company  of  Chicago.3 

2  Article  XVI,  Sec.  57,  General  Provisions,  Constitution  of  Texas. 

3  "  Report  of  the  Capitol  Building  Commissioners  to  the  Governor  of 
Texas,  Jan.  i,  1883":  p.  31. 


580  HISTORY   OF   THE    SUPREME    COURT 

When  only  a  small  part  of  the  building  had  been  constructed, 
the  State  officials  leased  to  the  Farwells  all  of  the  3,000,000 
acres  "  not  yet  earned "  at  six  cents  an  acre  per  annum.4 
The  Farwells  immediately  used  it  for  grazing  purposes,  at  large 
profit  to  themselves. 

Instead  of  using  granite  the  contractors  began  to  construct 
the  building  with  limestone,  whereat  public  indignation  began 
to  manifest  itself.5  Pleading  that  they  could  not  afford  granite 
the  Farwells  demurred  at  being  put  to  more  expense,  although 
they  were  then  receiving  the  3,000,000  acres  in  installments  as 
fast  as  certain  parts  of  the  building  were  constructed.  It  had 
been  definitely  understood  and  expected  that  in  return  for  that 
enormous  area  of  land  they  would  erect  a  substantial  building ; 
that  they  were  not  doing  so  caused  ugly  scandal. 

Three  Million  Acres  by  the  Convict  Labor  Route. 

At  this  point,  Lacy,  Westfall  and  Norton,  owners  of  a  gran- 
ite quarry  in  Travis  County,  Texas,  came  forward,  and  in  a 
burst  of  public  spirit  offered  the  Farwells  the  free  use  of  their 
granite  deposits,  provided  they  would  quarry  them  and  build 
a  railroad  to  the  quarry.  The  Farwells,  however,  objecting 
that  they  did  not  care  to  pay  the  schedule  rates  of  union  labor, 
induced  the  State  officials  to  give  them  a  supply  of  convict 
labor.  On  July  25,  1885,  the  State  officials  contracted  with 
the  firm  of  Taylor,  Babcock  and  Company  to  furnish  that  cor- 
poration with  five  hundred  "  able-bodied  convicts."  In  return, 
all  that  the  contractors  had  to  do  was  to  board,  clothe  and 
guard  the  convicts,  and  to  pay  the  State  sixty-five  cents  a  day 
for  each  convict's  labor.  These  convicts  were  to  be  used  in 
constructing  a  railroad  to  the  granite  quarries  and  were  also 
to  do  the  granite  and  stone  work  at  the  quarries  necessary  for 

4  "  Third  Biennial  Report  of  the  Capitol  Building  Commission,  1886  " : 
p.  199. 

5  Ibid.,  201. 


UNDER   CHIEF   JUSTICE   FULLER  581 

the  building.  The  convicts  thus  used  were  to  be  white,  Mexi- 
can or  colored,  and  were  to  work  ten  hours  a  day.0 

Complaints  were  frequently  made  that  the  convicts  were 
wretchedly  treated  and  brutally  overworked.  But  so  far  as 
the  general  public  went  the  charge  that  made  a  deeper  impres- 
sion was  that  the  Capitol  was  flimsily  constructed.  At  a  meeting 
of  the  State  Capitol  Board,  on  September  10,  1888,  Attorney- 
General  Hogg  introduced  a  resolution  stating  that  "  whereas, 
for  more  than  a  year  past  many  complairlts  of  a  serious  nature 
have  been  made  against  the  workmanship  of  the  new  State 
Capitol,  mostly  by  private  parties,  but  more  recently  by  General 
W.  P.  Hardeman,  Superintendent  of  Public  Buildings  and 
Grounds,  and  they  yet  continue  to  be  made,"  etc.,  etc.  Hogg 
accused  the  Capitol  Commissioners  of  paying  no  attention  to 
the  charges,  and  his  resolution,  therefore,  "  invited  them  to  re- 
sign." 7  The  commissioners  denied  the  charges  and,  of  course, 
declined  the  invitation. 

The  cost  of  constructing  the  Capitol  was  stated  to  be 
$3,095,000,  and  the  last  installment  of  the  3,000,000  acres  was 
turned  over  to  the  Farwells  on  August  25,  i888.8  A  large 
part  of  the  3,000,000  acres  the  Farwells  disposed  of  at  an 
enormous  profit;  the  Farwell  family  still  holds  800,000  acres 
and  have  a  large  ranch  house  at  Channing,  which  Walter  Far- 
well  occupies  during  the  summer,  spending  the  winters  in  Eng- 
land. 

Apparently  a  digression,  these  details  are  introduced  for  the 

6  "  Third  Biennial  Report  of  the  [Texas]   Capitol  Building  Commis- 
sion," 1886:  p.  204. 

7  "  Final  Report  of  the  Capitol  Building  Commissioners,  1888  v:  p.  32. 

8  Ibid.,  p.  36.     At  the  time  this  land  was  originally  granted,  its  great 
value  for  agricultural  and  grazing  purposes  was  pointed  out.     Much  of 
it,  reported  N.  L.  Norton,  Commissioner  to  survey  the  lands,  in  1883, 
was  wheat-bearing  soil  of  a  high  degree.     "  The  thousands  of  prairie 
dogs  met  on  every  hand,  and  which  are  never  located  beyond  the  con- 
venient reach  of  water,  undoubtedly  attest  the  fact  of  a  supply  under- 
ground, which  may  be  utilized  by  mechanical  appliances  at  a  moderate 
cost." — "  Report  of  the  Capitol  Building  Commissioners  to  the  Governor 
of  Texas,  Jan.  i,  1883":  p.  61. 


582  HISTORY   OF   THE    SUPREME    COURT 

purpose  of  exhibiting  a  few  of  the  economic  interests  of  some 
of  the  men  vigorously  pushing  Fuller  for  the  Chief  Justiceship. 
At  the  precise  time  when  Se'nator  Farwell  was  urging  the  ap- 
pointment he  was  putting  the  finishing  touches  upon  the  con- 
summation of  the  acquisition  of  the  3,000,000  acres,  obtained 
by  the  connivance  of  officials  and  the  exploitation  of  convict 
labor. 

Like  that  of  Waite,  Fuller's  appointment  was  a  complete 
surprise  to  the  large  public ;  his  name  and  career  were  utterly 
unfamiliar.  But  to  corporations  of  all  kinds  his  skill  and  serv- 
ice had  long  been  intimately  known  and  highly  valued.  The 
list  of  corporations  that  he  had  represented  as  an  attorney  was 
an  elaborate  one. 

Career  of  the  New  Chief  Justice. 

He  was  born  in  Augusta,  Maine,  in  1833.  As  a  child  he 
was  brought  up  in  a  legal  atmosphere ;  his  father  was  a  lawyer ; 
and  so  were  his  father's  two  brothers ;  and  his  mother  was  a 
daughter  of  Nathan  Weston,  for  many  years  the  Chief  Justice 
of  the  Supreme  Court  of  Maine.  Fuller  went  to  Chicago,  in 
1856,  and  from  the  first  sought  the  clientage  of  rich  individuals 
and  powerful  corporations,  dipping  somewhat  into  politics. 
He  was  a  member,  in  1861,  of  the  Illinois  State  Constitutional 
Convention;  in  1862  he  served  in  the  Illinois  Legislature,  and 
he  was  a  delegate  to  the  Democratic  National  Conventions  of 
1864,  1872,  1876  and  1880. 

His  corporation  practice  was  so  large  that  only  some  typical 
cases  of  the  entire  number  in  which  he  appeared  will  be  given 
here. 

He  and  J.  H.  Roberts,  in  1870,  represented  Dows,  a  stock- 
holder of  the  Union  National  Bank  of  Chicago,  in  a  long- 
drawn  but  unsuccessful  action  to  restrain  the  City  of  Chicago 
from  levying  a  tax  upon  bank  stock.9  Three  years  later  we 

9  XI  Wallace's  Reports,  Supreme  Court  of  the  U.  S.,  p.  108. 


UNDER    CHIEF   JUSTICE    FULLER  583 

find  him  arguing  for  the  Merchants'  National  Bank,  but  with- 
out success,  that  the  power  of  a  State  to  tax  stockholders  in  a 
national  bank  did  not  extend  to  non-resident  stockholders.10 

At  the  same  time  Fuller  was  counsel  for  the  First  National 
Bank  of  Springfield ; n  for  the  Commercial  Bank  of  Bristol, 
R.  I.,12  and  for  other  banks.  He  represented  Jesse  Hoyt,  a 
large  Chicago  railroad  capitalist,  Philip  D.  Armour,  the  multi- 
millionaire Chicago  packer,  and  associates  in  an  action  for  an 
injunction  to  restrain  the  Chicago,  Burlington  and  Quincy  Rail- 
road from  taking  up  a  certain  sidetrack.  Hoyt  owned  a  three- 
quarter  interest  in  the  "  Union  Elevator,"  a  large  grain  ware- 
house; hence  his  participation  in  the  action.  This  contest  of 
millionaire  wheat  gamblers  and  monopolists  assumed  various 
phases  in  which  Hoyt,  Armour  and  others,  although  associates, 
were  at  times  on  different  sides.13  Representing  the  First  Na- 
tional Bank  of  Chicago,  Fuller  and  two  other  attorneys  sought 
to  prevent  that  bank  from  being  held  responsible  for  the  de- 
falcation of  $114,032.62  of  A.  W.  Waldron,  treasurer  of  the 
village  of  Hyde  Park.  The  circumstances  of  the  defalcation 
were  such  that  the  bank,  so  the  lower  court  decided,  could  be 
held  liable  for  nearly  $60,000  and  interest.  But  Fuller  won 
the  case  in  the  Supreme  Court  of  Illinois.14  At  different  times 
during  this  period,  and  often  for  many  successive  years  he  was 
counsel  for  the  Metropolitan  National  Bank,  the  Traders' 
Bank,  the  Fourth  National  Bank,  the  Manufacturers'  Na- 
tional Bank,  the  Merchants'  National  Bank  and  for  extensive 
estates  such  as  the  Walker,  the  Stephen  A.  Douglas  and 
others. 

10  XIX  Wallace's  Reports,  499.     Justice  Field  denied  the  injunction 
applied  for,  Field's  ground  being  that  the  mere  charge  that  a  tax  was 
illegal   was  not  basis   enough   for  an   injunction   in   a   suit  of  equity. 
Field  pointed  out  that  there  must  be  other  special  circumstances,  such 
as  that  the  tax  would  produce  irreparable  injury,  etc. 

11  67  Illinois  Reports,  298. 

12  68  Ibid.,  349. 

13  93  Illinois  Reports,  601-613. 

14  101  Illinois  Reports,  595-609. 


584  HISTORY   OF   THE    SUPREME   COURT 

Fuller's   Course  as  Railroad  Attorney. 

He  was  the  regular  counsel  for  the  Chicago,  Burlington  and 
Quincy  Railroad.  One  of  the  cases  pertaining  to  this  railroad 
in  which  he  appeared,  in  1883,  is  worth  citing. 

For  six  years  Samuel  Warner  had  worked  for  the  railroad, 
first  as  a  brakeman  and  during  the  last  two  years  as  a  freight- 
train  conductor.  While  uncoupling  and  detaching  a  freight 
car  in  motion  on  August  20,  1875,  Warner  threw  himself 
around  the  corner  of  the  car,  expecting  to  get  a  foothold  on 
similar  steps  on  the  other  side,  whence  he  could  have  reached 
the  rear  of  the  car  where  the  uncoupling  had  to  be  done.  But 
the  car  was  not  equipped  with  any  such  steps  —  a  fact  that 
Warner  did  not  know.  The  consequence  was  that  Warner 
lost  his  balance,  was  thrown  to  the  track,  and  his  left  arm  was 
so  crushed  and  mangled  that  it  had  to  be  amputated.15 

On  the  ground  that  the  company  was  willfully  negligent  in 
not  providing  end  steps  or  ladders  for  coupling  or  uncoupling 
purposes,  Warner  sued  for  damages.  He  was  awarded  $5,000 
damages  in  the  lower  court;  this  judgment  was  sustained  by 
the  Appellate  Court.  The  company  appealed  to  the  Illinois 
Supreme  Court;  meanwhile  six  years  had  gone  by  without 
Warner  receiving  a  cent. 

Fuller  appeared  for  the  railroad  company  in  the  Illinois 
Supreme  Court,  arguing  for  a  reversal  of  the  verdict.  Aston- 
ishingly contradictory  and  pettifogging  as  they  may  seem,  these 
were  actually  the  points  that  he  advanced :  First,  there  was 
no  evidence  that  the  loss  of  Warner's  arm  did,  or  would,  im- 
pair his  ability  to  pursue  his  business.  Second,  there  was  no 
evidence  of  the  extent  of  the  pain  that  Warner  had  suffered, 
other  than  the  loss  of  his  arm ;  pain,  as  an  element  of  damage, 
could  not  be  inferred  from  this  fact.  Third,  there  was  no  evi- 

15  Case  of  Chicago,  Burlington  and  Quincy  Railroad  vs.  Samuel  War- 
ner, 108  Illinois  Reports,  544. 


UNDER    CHIEF   JUSTICE    FULLER  585 

dence  of  damages  —  none  of  nurses'  bills  incurred,  or  of  any 
other  expense.16 

So  far  as  the  railroad  workers  were  concerned,  Fuller  argued 
that  "  the  master  is  not  bound  to  throw  away  his  machinery  be- 
cause there  may  be  others  better  calculated  to  insure  safety." 
In  other  words,  railroad  corporations  could  ignore  the  safety  of 
the  lives  of  their  workers,  which  is  precisely  what  they  were 
doing.  An  enormous  number  of  railroad  employes  were  being 
killed  or  maimed  annually.  Although  the  railroad  corporations 
were  making  vast  profits,  they  were  contesting  every  attempt 
to  pass  an  employers'  liability  law,  and  especially  a  law  com- 
pelling them  to  equip  their  cars  with  safety  appliances.  In  re- 
spect to  the  liability  of  railroad  companies  to  passengers,  Ful- 
ler argued,  the  rule  was  different.  Warner,  he  contended, 
knew  that  the  company  used  cars  without  steps  or  handle,  and 
before  attempting  to  uncouple  he  should  have  ascertained 
whether  the  car  had  them  or  not. 

But  it  must  be  said  that  Fuller  did  not  state  the  real  facts, 
nor  apply  common-sense  logic.  If  Warner  had  refused  to 
work  on  such  dangerous  cars  he  would  have  been  without  a  job 
and  support,  and  if  all  other  workers  had  similarly  refused, 
the  railroad  could  not  have  been  operated.  At  the  peril  of  their 
lives,  the  workers  were  really  doing  a  favor  to  the  company 
working  on  its  cars. 

Justice  Mulkey  agreed  with  Fuller  that  the  risk  was  one  of 
voluntary  assumption.  Of  Fuller's  other  pleadings  he  strongly 
disapproved. 

Ironical  as  it  may  seem,  the  fact  remains  that  Mulkey  pro- 
ceeded to  argue  gravely  whether  the  mangling  of  an  arm,  and 
its  consequent  amputation,  constituted  evidence  of  pain.  He 
decided  solemnly  that  it  did.  Justice  Mulkey  then  went  on  to 
controvert  Fuller's  fiction  that  the  loss  of  an  arm  did  not  im- 
pair Warner's  ability  to  earn  his  living.  The  fact  that  he  was 

i°  Ibid.,  540-541, 


586  HISTORY   OF    THE    SUPREME    COURT 

forced  to  abandon  his  job,  Mulkey  said,  was  in  evidence  before 
the  jury.  "  That  both  arms,"  he  commented,  "  are  useful  in 
all,  and  indispensable  in  most,  of  the  avocations  of  life  is  but  a 
part  of  the  common  information  of  mankind  in  general,  and 
hence  it  required  no 'other  proof  to  establish  it.  .  .  ."  But, 
so  the  court  decided,  Warner  had  voluntarily  assumed  the  risk ; 
therefore,  he  was  negligent;  therefore,  the  judgment  in  his  fa- 
vor should  be  reversed,  and  he  must  get  no  damages.17  Warner 
was  consigned  to  a  life  of  destitution ;  Fuller  at  this  time  was 
enjoying  an  annual  income  of  at  least  $20,000.  In  fact,  Fuller, 
it  was  said,  was  a  stockholder  in  the  Chicago,  Burlington  and 
Quincy  Railroad. 


A  Multimillionaire's  Attorney. 

Two  Chicago  multimillionaires  —  Marshall  Field  and  Levi 
Z.  Leiter  —  quarreled  over  a  party  wall,  which  difference  grew 
into  an  extended  litigation.  As  one  of  Field's  attorneys  Fuller 
eventually  won  the  case.18  Field  was  a  conspicuous  railroad 
stockholder ;  he  was  a  powerful  factor  in  the  Chicago,  Rock 
Island  and  Pacific  Railroad  and  other  railroads;19  his  will  re- 
vealed that  he  also  owned  $1,500,000  of  Baltimore  and  Ohio 
Railroad  stock,  $600,000  of  Atchison,  Topeka  and  Santa  Fe 
Railroad  stock;  $1,860,000  in  stock  in  the  Chicago  and  North- 
western Railroad,  and  tens  of  millions  of  dollars  of  stock  in 
fourteen  other  railroads. 

Field  was,  likewise,  one  of  the  largest  stockholders  in  the 
Union  Traction  Company  and  its  associated  street  railway  com- 

17  108  Illinois  Reports,  538-555.  (Jan.,  1884.)  On  the  Illinois  Su- 
preme Court  Bench  at  this  time  were  also  Justices  Sheldon,  Schofield, 
Dickey,  Scott  and  Craig,  nearly  all  of  whom  had  been  railroad  attor- 
neys. For  example,  Schofield  had  been  attorney  for  the  St.  Louis, 
Vandalia  and  Terre  Haute  Railroad  at  the  time  of  his  election  to  the 
Illinois  Supreme  Court  (67  Illinois  Reports,  608,  etc.),  of  which  court 
he  later  became  Chief  Justice. 

18n8  Illinois  Reports,  17. 

19  "  Poor's  Railroad  Manual "  for  1890:  p.  1097,  etc. 


UNDER    CHIEF   JUSTICE   FULLER  587 

panics  of  Chicago.20  The  methods  by  which  these  companies 
obtained  their  franchises  and  controlled  Common  Council  and 
Legislature  were  consistently  corrupt ;  the  sums  spent  in  pur- 
chasing ordinances  and  legislation  were  immense.21  And  it 
may  be  remarked  here  that  although  for  more  than  twenty 
years  from  1865  committees  of  Chicago  citizens  were  formed 
time  after  time  to  fight  this  corrupt  legislation,  Fuller  was  never 
one  of  their  number.  Other  lawyers  enlisted,  but  Fuller  was 
preoccupied  advancing  the  interests  of  the  very  capitalists 
against  whom  these  movements  were  conducted. 

Field  was  also  in  almost  absolute  control  of  the  Pullman 
Company  works  by  reason  of  his  being  the  largest  owner  of 
stock  in  that  concern.  Manufacturing  Pullman  cars,  and  em- 
ploying nearly  20,000  men,  the  Pullman  was  a  vast  corporation, 
reaping  great  profits.  The  trickeries,  snares,  fraudulent  sales 
and  cheatings  by  which  it  was  alleged  the  land  on  which  the 
works  were  located  was  originally  gotten,  were  set  forth  in 
detail  in  the  suit  brought  by  Speck  and  others.22  We  have 
seen  how  Robert  T.  Lincoln,  president  of  the  Pullman  Com- 
pany, was  one  of  Fuller's  most  active  backers  for  the  Chief 
Justiceship  of  the  Supreme  Court  —  a  fact  intimately  related, 
as  we  shall  show  later,  to  a  certain  notable  decision  of  the  Su- 
preme Court  of  the  United  States  when  Fuller  was  Chief  Jus- 
tice. 

Marshall  Field,  at  his  death,  left  a  fortune  estimated  at 
$140,000,000.  It  was  then  discovered  that  for  many  years  he 
had  owned  at  least  $17,500,000  of  taxable  personal  property 
on  which  he  had  long  defrauded  the  city  of  taxes.  Suit  was 

20  Norton's  "  Chicago  Traction,"  p.  142. 

21  See,  Ibid,  in  which  this  long-prevailing  corruption  is  described. 

22  See,  Case  of  Speck  et  al.  vs.  Pullman  Palace  Car  Company,   121 
Illinois    Reports,    34.     (May,    1887.)     The   complaint    recited    that    the 
lands  were  originally  owned  by  Charles  Dunn,  who  had  died  in  1869, 
and  that  his  widow  was  defrauded  out  of  the  property  by  deceit,  the 
trickery  of  lawyers  and   fraudulent  sale.     Justice   Schpfield    (who,   as 
has  been  noted,  had  been  a  railroad  lawyer)   decided  in  favor  of  the 
Pullman  Company. 


588  HISTORY   OF   THE    SUPREME   COURT 

brought  for  $1,700,000  back  taxes,  but  on  March  2,  1908,  the 
Field  estate  compromised  by  paying  the  city  $i,ooo,ooo.23 
It  was  calculated  that  the  total  amount  of  Field's  tax  frauds 
reached  fully  $3,000,000. 


Fuller's  Further   Corporation  Practice. 

Fuller  was  one  of  the  leading  counsel  for  the  Chicago  Gas- 
light and  Coke  Company  in  its  legal  contest  with  the  People's 
Gaslight  and  Coke  Company.  Both  of  these  companies  had 
debauched  the  Common  Council  and  Legislature  to  get  their 
franchises.  The  Chicago  Gaslight  and  Coke  Company  had 
secured,  in  1849,  an  exclusive  franchise  for  ten  years.  In  1855 
the  People's  Gaslight  and  Coke  Company  obtained  a  franchise 
from  the  Legislature  on  the  plea  that  it  sought  to  break  the 
monopoly  held  by  that  company.  But  in  1862  both  companies 
formed  a  combination,  and  the  Chicago  Gaslight  and  Coke  Com- 
pany agreed,  for  the  period  of  one  hundred  years,  not  to  lay 
pipes  or  sell  gas  in  the  territory  of  the  other  company.  This 
pool,  of  course,  created  a  monopoly. 

The  compact  continued  until  1886,  when  the  Chicago  Gas- 
light and  Coke  Company  secured  a  franchise  to  build  a  tunnel 
under  the  South  branch  of  the  Chicago  River.  Pleading  that 
the  Chicago  Gaslight  and  Coke  Company  threatened  to  com- 
pete and  violate  its  contract,  the  People's  Company  applied  for 
an  injunction,  and  obtained  it  in  the  Appellate  Court.  In  the 
Illinois  Supreme  Court,  Fuller,  on  appeal,  argued  that  a  con- 
tract to  control  rates  was  void.  Judge  Magrtider,  in  1887,  de- 
cided that  the  court  would  not  aid  either  party  in  the  enforce- 
ment of  such  an  illegal  contract.  The  injunction  was  dis- 
solved.24 

23  On  that  date  a  check  for  the  amount  was  delivered  to  John   R. 
Thompson,  treasurer  of   Cook   County.     The   Field   estate   decided   to 
compromise  before  the  action  went  to  trial. 

24  121    Illinois    Reports,   532-542.     Seventeen    years    later,    Fuller,    as 
Chief  Justice  of  the  Supreme  Court  of  the  United   States,  delivered 


UNDER    CHIEF   JUSTICE    FULLER  589 

These,  perhaps,  are  sufficient  examples  of  Fuller's  practice. 
He  was  one  of  the  busiest  and  best-paid  corporation  attorneys 
in  Chicago ;  it  was  estimated  that  in  thirty-two  years  he  had 
probably  tried  not  less  than  twenty-five  hundred  cases,  not  in- 
cluding cases  settled  out  of  court. 

One  of  the  exceptions  to  his  long  list  of  pleadings  for  indi- 
vidual capitalists  or  large  corporations  was  his  being  retained 
by  the  City  of  Chicago  in  the  suit  of  the  State  against  the 
Illinois  Central  Railroad.  This  company  had  assumed  to  own, 
since  the  year  1869,  not  less  than  a  thousand  acres  of  formerly 
submerged  lands  along  the  city  front  of  Lake  Michigan,  on 
portions  of  which  it  had  built  wharves,  docks,  piers  and  ware- 
houses. The  act  under  which  this  claim  Was  set  up  had  been 
originally  obtained  by  corruption.  In  1873  tne  Legislature 
passed  a  repealing  act.  When  the  State  brought  suit  charging 
unlawful  possession  and  usurpation,  the  railroad  claimed  that 
the  repealing  act  was  unconstitutional,  as  impairing  the  obliga- 
tion of  a  contract.  The  Circuit  Court  of  the  United  States, 
however,  decided  that  the  title  remained  vested  in  the  city.25 
This  decision  was  upheld  by  the  Supreme  Court  of  the  United 
States.20 

Before  considering  some  of  the  important  decisions  of  the 
Supreme  Court  of  the  United  States  under  Chief  Justice  Ful- 
ler, it  will  be  advisable  to  describe  certain  circumstances,  and 
to  give  a  review  of  the  careers  of  new  Justices  successively  ap- 
pointed after  he  assumed  his  seat. 

that  court's  decision  refusing  an  application  of  the  People's  Gaslight 
and  Coke  Company  for  an  injunction  to  restrain  the  City  of  Chicago 
from  enforcing  an  ordinance  limiting  gas  rates  to  seventy-five  cents  per 
thousand  feet. — 194  U.  S.  Reports,  7. 

25  33  Federal  Reports,  721,  and  Ibid.,  732. 

20  By  a  bare  majority  vote  of  four  to  three.  (146  U.  S.  Reports,  455.) 
The  ground  of  the  decision  was  that  the  legislature  held  the  title  to 
submerged  lands  under  navigable  waters  in  trust,  and  could  not  alienate 
those  lands  except  in  such  small  parcels  as  public  interest  might  require. 
Justice  Field  wrote  the  court's  opinion;  it  was  a  commendably  credita- 
ble decision  for  Field. 


59O  HISTORY   OF   THE    SUPREME   COURT 

Justice  Field's  Enemy,  Terry,  Shot  and  Killed. 

Justice  Field,  who  seems  to  have  been  oppressed  by  the  un- 
fortunate faculty  of  personally  stirring  adverse  public  criticism, 
again  came  sharply  into  public  notice  at  this  juncture.  Judge 
Terry,  of  whom  we  have  spoken  in  a  previous  chapter,  had 
acted  as  counsel  to  Sarah  Althea  Hill,  who  claimed  that  she  had 
been  secretly  married  to  Senator  William  Sharon,  a  Nevada 
and  California  millionaire  mine  owner.  When  he  died  she 
married  Judge  Terry  and  claimed  Sharon's  estate.  The  Su- 
preme Court  of  California  decided  that  there  had  been  a  secret 
marriage  contract.  But  in  the  United  States  Circuit  Court 
Justice  Field  ordered  the  cancellation  of  the  marriage  contract 
on  the  ground  of  forgery.  In  a  burst  of  rage  Mrs.  Terry 
arose  in  court  and  asked  Field  how  much  he  had  been  paid  for 
his  decision.  Field  held  her  for  contempt. 

The  old  enmity,  or  rather  feud,  between  Terry  and  Field 
now  gathered  fresh  fuel.  It  was  reported  (although  whether 
falsely  or  not,  we  do  not  know)  that  when  Field  committed 
Mrs.  Terry  to  jail  for  a  month,  Terry  drew  a  bowie  knife.  At 
any  rate,  Field  ordered  Terry  arrested  and  committed  to  jail 
for  six  months. 

On  the  way  north  from  Los  Angeles,  on  his  circuit  duties, 
Justice  Field,  on  the  morning  of  August  14,  1889,  stopped  at 
Lathrop,  California,  for  his  breakfast.  Mr.  and  Mrs.  Terry 
were  there  at  the  time.  Terry  stepped  up  to  the  luncheon  stool 
on  which  Field  sat  and  slapped  his  face  with  the  back  of  his 
hand.  United  States  Marshall  David  Nagle  then  shot  Terry 
dead.  Terry  was  unarmed,  but  reports  had  it  that  Mrs.  Terry 
had  a  bowie  knife  and  revolver  in  her  hand  bag. 

Opinion  over  the  affair  was  divided.  Some  defenders  of 
Field  held  that  it  was  a  justifiable  case  of  self -protection. 
Friends  of  Field  asserted  that  Terry  had  sworn  that  he  would 
take  Field's  life.  A  considerable  section  of  public  opinion  con- 
demned the  killing  as  unmitigated  murder.  Justice  Field  was 


UNDER    CHIEF   JUSTICE    FULLER  59! 

arrested,  but  released.  As  for  Nagle,  he  was  exonerated  by 
the  courts  on  the  ground  that  he  had  done  his  duty  in  preserving 
the  life  of  a  judge. 


Field's  Nephew,  Brewer,  Appointed. 

Four  months  after  this  killing,  Field's  nephew,  David  J. 
Brewer,  was  appointed  an  Associate  Justice  of  the  Supreme 
Court  of  the  United  States. 

Brewer  was  the  son  of  a  missionary  to  Turkey ;  he  had  been 
graduated  from  Yale,  in  1856;  had  been  a  United  States  Com- 
missioner in  Kansas ;  a  judge  of  the  probate  and  criminal  court 
in  that  State  from  1861  to  1865 ;  a  member  of  the  Kansas  Su- 
preme Court  from  1870  to  1884,  and,  in  the  latter  year,  had 
been  appointed  a  judge  of  the  United  States  Circuit  Court. 
According  to  the  bare  newspaper  reports,  Brewer,  when  nom- 
inated for  the  Supreme  Court  of  the  United  States,  was  sub- 
jected to  serious  criticism  of  his  conduct  in  the  appointment 
of  receivers  for  the  Wabash  railroad  system,  and  for  some 
decisions  he  had  rendered  concerning  the  receivership.  It  was 
a  fact  that  Judge  Gresham,  who  was  an  incorruptible  judge 
and  who  had  exposed  Gould's  fraudulent  manipulation  of  the 
Wabash  railroad,  removed  receivers  whom  Gould  and  Sage 
had  caused  to  be  appointed,  and  caustically  denounced  the  trans- 
action.27 Brewer's  friends  explained  that  the  responsibility 
was  to  be  charged  not  to  him,  but  to  Judge  Treat. 

Justice  Brown's  Corporate  Connections. 

The  next  appointee  to  the  Supreme  Court  was  Henry  B. 
Brown  of  Detroit,  Michigan.  He  was  born  in  Lee,  Massa- 

27  See  a  detailed  account  in  the  North  American  Reviezv,  issue  of 
February,  1888.  Gould  and  Sage,  after  looting  the  railroad  of  millions 
of  dollars,  had  thrown  it  into  bankruptcy,  and  caused  the  appointment 
of  Humphreys  and  Tutt,  two  of  its  former  directors  and  officers  who 
had  been  part  of  the  directorate  that  brought  the  system  to  bankruptcy. 


592  HISTORY   OF  THE   SUPREME   COURT 

chusetts;  his  father  was  a  manufacturer.  After  leaving  Yale 
he  went,  in  1859,  to  Detroit.  From  1861,  when  he  was  ap- 
pointed a  deputy  United  States  marshall,  he  held  various  pub- 
lic offices  —  was  Assistant  United  States  District  Attorney,  and 
judge  of  the  Wayne  County  (Mich.)  Court.  In  1864  he  mar- 
ried Caroline  Pitts,  the  daughter  of  a  rich  lumberman,  and 
later  returned  to  the  practice  of  law,  forming  a  partnership 
with  J.  S.  Newberry  and  Ashley  Pond. 

The  firm  of  Newberry  and  Pond  had  represented  the  Am- 
boy,  Lansing  and  Traverse  Bay  Railroad,  the  Detroit  and  Mil- 
waukee Railroad  and  other  railroads  and  copper-mining  and 
insurance  companies.28  During  the  time  that  Brown  was  a 
member  of  the  firm  of  Newberry,  Pond  and  Brown,  the  firm 
was  counsel  for  the  Atlas  Mining  Company,  and  Pond  ap- 
peared for  the  Marquette  and  Ontonagan  Railroad  and  other 
corporations.29 

The  firm  then  became  Pond  and  Brown.  From  1873  to 
1875  it  represented  such  corporations  as  the  Michigan  State 
Insurance  Company,  the  Port  Huron  Dock  Company,  the  Con- 
necticut Mutual  Life  Insurance  Company  and  the  Lake  Su- 
perior Ship  Canal,  Railroad  and  Iron  Company.30  This  last- 
named  company  had  obtained  from  Congress,  in  1865-1866,  a 
grant  of  400,000  acres  of  swamp  lands  as  assistance  in  encour- 
aging the  building  of  its  canals.  But  the  company  caused 
fraudulent  surveys  to  be  made  by  which  it  secured  vast  beds  of 
iron  ore.  In  his  annual  report  for  1885,  Commissioner  Sparks 
of  the  General  Land  Office,  described  how  its  "  canal  "  was  only 
a  worthless  ditch,  and  how  instead  of  surveying  swamp  lands, 
it  had  fraudulently  appropriated  at  least  100,000  acres  of  the 
richest  mineral  lands.31  The  suit  in  question  was  brought  by 

28  XIII   Michigan    Reports,  382  and  440;    XIX   Ibid.,  393   and  430; 
XXIII  Ibid.,  1 88; 'etc. 

29  XIII  Ibid.,  37,  and  XXVIII  Ibid.,  290,  etc. 

30  XXX  Ibid.,  39;  XXXI  Ibid.,  7;  XXXII  Ibid.,  235. 
81  House  Executive  Documents,  1885-1886,  Vol.  II. 


UNDER    CHIEF   JUSTICE    FULLER  593 

the  Attorney-General  of  Michigan  on  the  score  of  usurpation 
and  alleged  illegal  collection  of  tolls.     The  company  won. 

In  1875  President  Grant  appointed  Brown  a  United  States 
District  Court  judge  in  Michigan.  Ashley  Pond  continued  his 
practice  as  a  railroad  lawyer ;  he  became  general  counsel  for 
the  Michigan  Central  Railroad  —  a  Vanderbilt  property.32 
Brown  went  on  the  Bench  of  the  Supreme  Court  of  the  United 
States,  on  December  29,  1890,  succeeding  Justice  Miller. 

Justice  Brown's  Interest  in  a  Copper  Case. 

In  addition  to  being  a  corporation  attorney,  Brown  was  a 
stockholder.  In  the  case  of  the  appeal  of  the  Detroit  Citizens 
Street  Railway  Company  vs.  Detroit  which  came  up  before 
the  Supreme  Court  of  the  United  States,  in  1895,  "  Mr.  Justice 
Brown  took  no  part  in  the  consideration  and  determination 
of  this  petition."  33  Justice  Brown  was  more  specific  in  a  case 
against  the  Calumet  and  Hecla  Mining  Company ;  he  frankly 
caused  it  to  be  inserted  in  the  record  that,  "  Mr.  Justice  Brown 
being  interested  in  the  result,  did  not  sit  in  this  case  and  took 
no  part  in  its  decision."  34 

The  copper  mines  of  the  Calumet  and  Hecla  Mining  Com- 
pany, in  Hough  ton  County,  Michigan,  have  been  rated  as 
among  the  richest  copper  properties  in  the  world.  They  were 
obtained  in  this  way:  In  1852  the  St.  Mary's  Falls  Ship  Canal 
Company  secured  from  Congress  a  grant  of  750,000  acres  of 
public  lands  for  aid  in  the  construction  of  a  canal.  A  year 
previously  —  in  1851 — a  voluminous  report  had  been  issued 
by  J.  W.  Foster  and  J.  D.  Whitney,  Government  geologists, 
giving  full  reports  of  the  character  of  the  mineral  deposits  in 

32  "  Poor's  Railroad  Manual"  for  1800:  p.  1327;  IV  Supreme  Court 
Reporter,  369,  etc. 

33  163  United  States  Reports,  683. 

34  Case  of   Chandler  vs.   Calumet  and  Hecla   Mining  Company,   149 
U.  S.  Reports,  79-95. 


594  HISTORY   OF   THE    SUPREME   COURT 

the  Lake  Superior  region.35  Long  before  that  time  it  was 
well  known  that  Lake  Superior  Indians  used  copper  utensils 
made  by  them  from  native  ore. 

Now  the  grants  made  by  Congress  to  canal  companies  meant 
to  cover  swamp  lands.  But  by  fraudulent  surveys  they  were 
so  manipulated  as  to  comprise  the  most  valuable  ore  beds.38 
This  fact  is  not  only  stated  in  official  reports,  but  it  was  made 
the  basis  of  the  suit  brought  by  Chandler  against  the  Calumet 
and  Hecla  Mining  Company.  In  his  bill  of  complaint,  Chand- 
ler detailed  the  granting  of  the  alleged  "  swamp  "  lands  by  Con- 
gress, and  claimed  an  interest.  The  decision  of  the  Supreme 
Court  of  the  United  States  went  against  him. 

That  he  tried  so  hard  to  establish  his  claim  is  not  surprising 
considering  the  enormous  profits  that  the  company  was  making. 
For  example,  Moody  thus  describes  its  operations  for  a  cer- 
tain number  of  years :  "  Capital  stock,  $2,500,000.  Par  $25, 
on  which  only  $12  per  share  has  been  paid.  Dividends  for  the 
year  ended  April  30,  1895,  60  per  cent.,  1896,  100  per  cent. ; 
1897,  120  per  cent.;  1898,  160  per  cent.;  1899,  280  per 
cent.;  1900,  320  per  cent.;  1901,  260  per  cent.;  1902,  100  per 
cent. ;  1903,  140  per  cent."  3T  When  Quincy  A.  Shaw,  presi- 
dent of  the  Calumet  and  Hecla  Mining  Company,  died  in  1910, 
his  will  filed  for  probate  at  Boston,  on  December  9,  1910,  dis- 
closed an  estate  of  $23,000,000 

Justice  Shiras,  Railroad  Lawyer. 

George  Shiras,  Jr.,  was  next  appointed  to  the  Supreme 
Court  of  the  United  States,  July  19,  1892,  by  President  Har- 
rison to  succeed  Justice  Bradley.38  His  father  was  a  Pittsburg 

35  U.  S.  Senate  Documents,  Special  Sessjon,  Thirty-second  Congress, 
1851,  Vol.  Ill,  Doc.  No.  4. 

36  See,  Annual  Report  for  1885,  of  Commissioner  Sparks,  of  the  Gen- 
eral Land  Office,  House  Ex.  Docs.,  1885-1886,  Vol.  II. 

37  John  Moody's  "  The  Truth  About  The  Trusts,"  p.  39. 

38  From  the  New  York  World,  of  January  23,  1892:     "Justice  Brad- 


UNDER   CHIEF   JUSTICE    FULLER  595 

brewer  who  had  retired  from  business  in  1840.  Practising 
law  in  that  city  from  1856  to  the  time  of  his  appointment, 
George  Shiras,  Jr.'s  connections  were  with  large  corporations. 
For  twenty  years  he  was  associated  with  the  Baltimore  and 
Ohio  Railroad  in  important  cases,  and  he  represented  the  Peo- 
ple's Gas  Company  and  other  corporations.  From  1881  to 
1883  his  partner  was  Henry  H.  Hoyt,  who  later  became  director 
of  various  powerful  banks.  During  a  deadlock  of  the  Penn- 
sylvania Legislature  over  the  election  of  a  United  States  Sena- 
tor, in  1881,  Shiras  "was  nominated  at  a  secret  caucus  of  Re- 
publicans by  a  majority  of  two,  but  two  days  later  the  vote 
was  reconsidered,  and  John  J.  Mitchell  was  elected. 

Shiras  frequently  appeared  in  the  courts  as  the  regular 
counsel  for  the  Pittsburg  and  Connellsville  Railroad  Company 
—  a  part  of  the  Baltimore  and  Ohio  Railroad  system.89  In 
the  case  of  the  Commonwealth  of  Pennsylvania  vs.  the  Pitts- 
burg  and  Connellsville  Railroad  Company,  he,  Latrobe  and 
other  attorneys  for  the  railroad  argued,  in  1868,  against  an 
action  for  the  forfeiture  of  the  company's  franchise.40 

McClurg,  a  passenger,  having  obtained  a  judgment  for  in- 
juries, Shiras  had  the  verdict  reversed  on  appeal.41  Elijah 
Patterson,  a  freight-train  conductor,  had  notified  the  superin- 
tendent of  the  bad  construction  of  a  sidetrack  connection ;  the 
superintendent  promised  it  would  be  repaired,  but  it  was  never 
attended  to.  A  train  on  which  Patterson  was  conductor  was 
later  derailed  and  Patterson  was  severely  injured.  The  suc- 
cessful defense  of  the  railroad  in  the  lower  court  was  that 
Patterson  knew  of  the  danger  and  had  voluntarily  exposed  him- 

ley  was,  perhaps,  the  richest  member  of  the  Bench,  and  leaves  a  fortune 
of  at  least  $1,000,000."  Other  newspaper  estimates  placed  Bradley's 
wealth  at  from  $500,000  to  $700,000. 

39  See,  56  Pa.  State  Reports,  295   (year  1867)  ;  58  Ibid.,  41 ;  76  Ibid., 
392,  489  and  513;  77  Ibid.,  183;  81  Ibid.,  in,  etc.,  etc.. 

40  59  Ibid.,  435. 

41  56  Pa.  State  Reports,  295. 


596  HISTORY   OF   THE    SUPREME    COURT 

self.  Patterson  appealed  to  the  Supreme  Court  of  Pennsylva- 
nia. There  Shiras  advanced  the  proposition  that  "  where  per- 
sons are  employed  in  the  same  general  service,  and  one  of 
them  is  injured  through  the  carelessness  of  another,  the  em- 
ployer is  not  responsible."  The  Supreme  Court  of  Pennsylva- 
nia, in  1875,  decided  in  favor  of  Patterson.42 

Shiras  also  represented  James  M.  Bailey,  a  director  of  the 
Pittsburg  and  Connellsville  Gas,  Coal  and  Coke  Company; 
Shiras  was  also  one  of  the  counsel  for  the  Pittsburg,  Virginia 
and  Charlestown  Railway  Company,  for  the  Monongahela  Na- 
tional Bank  and  sundry  other  corporations.43  When  appointed 
to  the  Supreme  Court  of  the  United  States  Shiras  had  an  an- 
nual income  from  his  practice  of  (it  was  estimated)  not  less 
than  $50,000  a  year,  and  possibly  $75,000.  The  city  of  Pitts- 
burg was  in  the  grip  of  the  notoriously  corrupt  Magee  political- 
capitalist  ring,  but  Shiras  took  no  part  in  movements  antagonis- 
tic to  Magee ;  he  assiduously  adhered  to  his  corporation 
practice ;  and  some  of  the  very  corporations  represented  by  him 
were  foremost  in  bribing  Common  Council  and  Legislature  and 
debauching  politicians  generally.44 

42  76  Pa.  State  Reports,  392. 

43  69  Ibid.,  338;  80  Ibid.,  35;  IV  Supreme  Court  Reporter  (Supreme 
Court  of  the  U.  S.),  336,  etc. 

44  "  The  railroads,"  relates  Lincoln   Steffens,  "  began  the  corruption 
of  the  city,"  and  he  then  proceeds  to  describe  the   development  and 
extent  of   that   corruption.     (See,   "Pittsburg:    A    City   Ashamed"   in 
"The  Shame  of  the  Cities,"  149-189.)     Magee's  railways,  combined  into 
the   Consolidated   Traction   Company,   were   capitalized   at   $30,000,000. 
The  extensive  "  graft "  investigation  at  Pittsburg,  in  March,  1910,  re- 
vealed that  the  officers  of  the   Second    National    Bank,  the   Farmers' 
Deposit  National  Bank,  the  Columbia  National  Bank  and  other  large 
banks  had  bribed  city  officials  to   favor  them  as  depositories  of  city 
funds.     The  railroads,  it  was  disclosed,  had  heavily  and  continuously 
bribed  members  of  the  Common  Council  by  means   (to  a  considerable 
extent)    of  free  transportation  passes,  which  the  Aldermen  then  sold 
at  a  large  profit  to  themselves.     The  ramifications  of  corruption  brought 
out  by  this  investigation  were  enormous.     Two  score  of  men  who  had 
been  or  who  were  members  of  the  City  Council  were  indicted,  and  a 
number  of  those  inculpated  confessed. 


UNDER    CHIEF   JUSTICE    FULLER  597 

Jackson  Succeeds  Lamar. 

At  Justice  Lamar's  death,  in  1893,  President  Harrison  ap- 
pointed Howell  E.  Jackson,  of  Tennessee,  to  succeed  him. 
Jackson  had  been  associated  with  railroads  before  the  Civil 
War.  In  the  winter  of  1857-1858  he  had  been  sent  to  New 
York  by  the  Mississippi  Central  Railroad  (later  the  Chicago, 
St.  Louis  and  New  Orleans  Railroad)  to  negotiate  its  bonds. 
This  he  did  satisfactorily.  After  the  Civil  War  he  settled  at 
Memphis,  Tennessee,  becoming  a  member  of  the  firm  of  Estes, 
Jackson  and  Elliott. 

The  clients  of  this  firm  were  mostly  large  banks  and  other 
corporations.45  In  1874,  a  year  after  the  death  of  his  first 
wife,  Jackson  married  Mary  Elizabeth  Harding,  a  daughter 
of  General  W.  G.  Harding,  owner  of  the  renowned  Belle 
Meade  Farm.  It  was  currently  reported  in  the  newspapers 
that  Jackson's  election  as  United  States  Senator,  in  1881,  was 
accomplished  by  the  use  of  money,  but  of  this  charge  there  is 
no  definite  proof  in  the  records.  Howell  E.  Jackson,  next  to 
his  brother,  was  reputed  to  be  the  richest  man  in  Tennessee. 
President  Cleveland  appointed  him,  in  1887,  to  the  United 
States  Circuit  Court.  An  examination  of  his  decisions  shows 
that  they  were  uniformly  favorable  to  corporations. 

A  fact  commented  upon  was  that  the  chief  proposer  and 
pusher  of  Jackson  for  the  Supreme  Court  was  Thomas  C. 
Platt,  the  Republican  boss  of  New  York  State,  and  that  the 
plant  of  the  Tennessee  Coal  and  Iron  Company,40  of  which 
Platt  was  president,  was  located  in  the  circuit  in  which  Jackson 
sat,  and  in  which  he  had  handed  down  decisions  favorable  to 
that  corporation.  Doubtless  the  additional  fact  that  Jackson 

45  See,  Heiskell's  Tennessee  Reports,  Vols.  IX,  X,  etc.,  etc. ;  Caldwell's 
Reports,  Vol.  IV,  etc. 

40  This  corporation  was  an  extremely  large  one.  It  owned  its  own 
sources  of  iron  ore  and  coal  supply,  estimated,  in  1907,  at  from  500,- 
000,000  to  700,000,000  tons  of  iron  ore  and  two  billion  tons  of  coal.  It 
is  now  a  constituent  part  of  the  Steel  Trust. 


598  HISTORY   OF   THE    SUPREME    COURT 

was  a  personal  friend  of  President  Harrison  had  its  weight  in 
determining  his  appointment  to  the  Supreme  Court  of  the 
United  States. 

Here  for  urgent  and  appropriate  reasons  that  will  explain 
themselves,  it  will  be  necessary  to  defer  describing  further  ap- 
pointments, and  to  begin  the  narrative  of  some  of  the  decisions 
of  the  Supreme  Court  under  Chief  Justice  Fuller. 

The  Timber  Monopoly. 

Decisions  favoring  railroads  were  so  common  that  a  descrip- 
tion of  them  would  entail  an  interminable  mass  of  detail.  A 
typical  case,  deserving  adequate  treatment,  was  a  particularly 
remarkable  decision  by  which  the  Supreme  Court  deliberately 
turned  over  to  a  group  of  railroad-lumber  syndicate  capitalists 
vast  holdings  of  standing  timber,  thus  directly  making  possible 
the  concentration  of  the  timber  supply  in  a  monopoly  closely 
controlled  by  a  few  men. 

Recently  a  report  issued  by  Herbert  Knox  Smith,  United 
States  Commissioner  of  Corporations,  comprehensively  de- 
scribed this  monopoly  and  its  workings.  ".  .  .  Only  forty 
years  ago,"  the  report  stated,  "  at  least  three-fourths  of  the 
timber  now  standing  was  (it  was  estimated)  publicly  owned. 
Now  about  four-fifths  of  it  is  privately  owned.  The  great 
bulk  of  it  passed  from  Government  to  private  hands  through 
(a)  enormous  railroad,  canal  and  wagon-road  grants  by  the 
Federal  Government ;  (b)  direct  government  sales  in  unlimited 
quantities  at  $1.25  an  acre;  (c)  certain  public  land  laws,  great 
tracts  being  assembled  in  spite  of  the  legal  requirements  for 
small  holdings.  .  .  ."  Elsewhere  the  report  says:  "In 
the  last  forty  years  concentration  has  so  proceeded  that  195 
holders,  many  interrelated,  have  now  practically  one-half  the 
privately  owned  timber  in  the  investigation  area  (which  con- 
tains eighty  per  cent,  of  the  whole).  This  formidable  process 


UNDER   CHIEF  JUSTICE   FULLER  599 

of  concentration,  in  timber  and  in  land,  certainly  involves  grave 
future  possibilities  of  impregnable  monopolistic  conditions, 
whose  far-reaching  consequences  to  society  it  is  now  difficult 
to  anticipate  fully,  or  to  overestimate.  .  .  ."  *7 

This  report,  while  thorough  and  authentic  within  its  pre- 
scribed limits,  omits  the  important  fact  that  it  was  decisions 
of  the  Supreme  Court  of  the  United  States  which  were  largely 
responsible  for  these  conditions.  One  of  these  decisions  and 
its  antecedent  and  later  circumstances  were  as  follows : 


The  Military  Wagon-Road  Grants. 

Congress,  on  February  25,  1867,  had  passed  an  act  granting 
about  600,000  acres  to  the  Dallas  Military  Road  Company  as 
aid  in  the  construction  of  a  military  wagon  road  from  Dallas 
City  on  the  Columbia  River,  to  Fort  Boise,  on  the  Snake  River, 
Idaho.  Congress  had  granted  other  tracts  to  other  wagon-road 
companies ;  the  total  grants  to  all  of  the  companies  were  about 
1,781,000  acres.  These  areas  comprised  the  finest  timber  lands 
in  the  Northwest.  The  Willamette  Valley  and  Cascade  Moun- 
tain Wagon  Road  Company  obtained  patents  for  some  440,000 
acres.  One  of  these  acts  granting  an  area  fraudulently  ex- 
tended to  about  720,000  acres  to  the  Oregon  Central  Military 
Road  Company,  was  passed  on  July  2,  1864, —  at  the  identical 
time  when,  as  we  have  seen,  the  Union  Pacific  Railway  Com- 
pany was  distributing  $436,000  in  bribes  to  get  its  land  grant 
increased  and  its  charter  altered. 

The  act  of  Congress  of  July  8,  1866,  provided,  however,  that 
if  certain  military  wagon  roads  were  not  completed  in  five 
years,  the  grants  were  to  be  forfeited,  and  revert  to  the  Gov- 
ernment. 

47  "  Summary  of  Report  of  the  Commissioner  of  Corporations  on  the 
Lumber  Industry,  Part  I,  Standing  Timber"  (Feb.  13,  1911)  :  pp.  3 
and  8. 


600  HISTORY   OF    THE    SUPREME   COURT 

Manipulation  of  the  Grants. 

None  of  these  companies  made  the  slightest  attempts  to  build 
the  roads.  In  order  to  .fortify  themselves  against  any  possi- 
bility of  forfeiture  of  land  grants,  they  immediately  began  to 
sell  or  mortgage  the  grants  to  "  innocent  parties."  That  they 
had  not  earned  the  grants  and  that  they  were  selling  domains 
which  they  held  conditionally  only  did  not  trouble  them  in  the 
least.  Familiar  with  many  successive  precedents  set  by  the 
Supreme  Court  of  the  United  States  from  the  time  of  Chief 
Justice  Marshall,  they  knew  that  if  action  for  forfeiture  were 
brought  against  them  on  the  ground  of  non-performance  and 
fraud,  the  "  innocent  purchasers  "  could  step  in,  and  plead  that 
they  knew  nothing  of  any  frauds  and  had  bought  in  good  faith. 

By  collusion  with  officials,  the  companies  obtained  title,  and 
then  proceeded  to  sell  or  mortgage  the  lands.  For  the  sum  of 
$125,000  (at  least,  it  was  so  claimed)  the  Dallas  Military  Road 
Company  sold  its  land  grant  to  Edward  Martin,  who  later  dis- 
posed of  it  to  the  Eastern  Oregon  Land  Company.  The  Ore- 
gon Central  Military  Road  Company  conveyed  its  land  grant  in 
bulk  to  the  California  and  Oregon  Land  Company.  The  Wil- 
lamette and  Cascade  Mountain  Wagon  Road  Company  trans- 
ferred its  interest  to  the  Oregon  Pacific  Railroad  Company  and 
others,  and  gave  a  mortgage  to  the  Farmers'  Loan  and  Trust 
Company  of  New  York. 

The  Fraudulent  Methods  Disclosed. 

The  people  of  Oregon  were  aroused  over  this  bold  appropria- 
tion of  more  than  a  million  acres  of  the  most  valuable  timber 
lands.  They  denounced  it  as  a  barefaced  theft,  which  it  was, 
in  truth;  the  roads  had  never  been  constructed.  Many  years 
of  forcible  agitation  were  required  to  get  the  Oregon  Legisla- 
ture to  take  some  action.  Successive  legislatures  were  con- 
trolled by  the  land-grabbing  syndicate,  At  last,  in  1885,  the. 


UNDER    CHIEF   JUSTICE    FULLER  6oi 

Oregon  Legislature  did  move.  It  recited  the  frauds  commit- 
ted, and  memorialized  Congress  to  pass  an  act  for  the  institu- 
tion of  proceedings  for  the  forfeiture  of  the  grants.  This  Con- 
gress did  on  March  2,  1889. 

The  Government  then  brought  suits  against  the  Dallas  Mili- 
tary Road  Company,  the  Oregon  Central  Road  Company,  the 
Willamette  and  Cascade  Mountain  Company  and  others. 

The  Government  alleged  as  to  the  Dallas  Company :  "  That 
the  road  was  never  constructed  in  whole,  or  in  part ;  that 
through  the  fraudulent  representations  of  the  officers,  stock- 
holders and  agents  of  the  company,  the  Governor  o£  Oregon 
[George  L.  Woods]  was  deceived  and  induced  to  issue  a  cer- 
tificate .  .  .  and  that  relying  upon  this  certificate,  the  pat- 
ents to  portions  of  the  lands  had  been  issued  to  the  com- 
pany. .  .  ."  48 

In  the  case  of  the  Oregon  Central  Military  Road  Company, 
the  Government  set  forth  that  by  the  same  fraud  and  deceit, 
it  had  obtained  a  certificate  from  Governor  Addison  C.  Gibbs, 
in  1866,  that  portions  of  the  road  had  been  built.  The  Gov- 
ernment's bill  of  complaint  went  on  to  say  "  that  it  was  not 
true  that  the  [first]  fifty  miles  of  road  had  been  constructed; 
that  in  order  to  procure  the  certificate  .  .  .  the  company 
fraudulently  pointed  out  to  the  governor  a  county  road  to 
which  the  company  never  had  a  legal  right,  and  led  the  gov- 
ernor to  believe  that  the  road  had  been  constructed  by  the  com- 
pany. .  .  ,"49 

Concerning  the  manner  in  which  flic  Willamette  Company 
had  secured  its  lands  the  Government  charged  that  the  com- 
pany "  fraudulently  represented  to  the  acting  governor  of  Ore- 
gon that  the  road  had  been  constructed  as  required  by  law  for  a 
distance  of  180  miles,  they  knowing  that  such  representations 
were  false,  and  that  the  road  had  never  been  constructed  at  all ; 
that  such  representations  were  made  for  the  purpose  of  fraudu- 
lently procuring  from  the  acting  governor  a  certificate  .  .  . ; 

48  41  Federal  Reports,  494.  49  Ibid.,  619. 


6O2  HISTORY    OF   THE    SUPREME    COURT 

that  the  acting  governor  did  not  examine,  or  cause  to  be  ex- 
amined, any  part  of  the  180  miles,"  etc.,  etc.50 

These  cases  originally  came  up  before  Judge  Lorenzo  Saw- 
yer, in  1890,  in  the  United  States  Circuit  Court,  in  Oregon. 
As  we  have  noted,  Judge  Sawyer  was  regarded  with  great 
friendliness  by  the  Pacific  railroad  interests.  Judge  Sawyer 
ignored  the  charges  of  fraud.  He  took  the  formal  ground 
that  the  Governor  of  Oregon  was  the  agent  of  the  United 
States,  and  that  when  he  certified  that  the  roads  had  been  built 
he  was  the  sole  deciding  authority  and  his  certificate  was  to- 
be  accepted  as  final  evidence.  Anyway,  Judge  Sawyer  said, 
the  claims  put  forward  by  the  Government  were  stale.51 

The  Supreme  Court  Validates  the  Frauds. 

The  action  now  went  up  to  the  Supreme  Court  of  the  United 
States.  The  old  subterfuge  of  the  "  innocent  purchaser  "  was 
now  again  pleaded,  and  successfully.  Justice  Brewer  wrote 
the  decisions  covering  these  associated  cases.  On  March  6, 
1893,  Brewer  decided  against  the  United  States.  The  pur- 
chasers from  the  original  companies,  he  said,  "  knew  nothing 
wrong  in  respect  to  the  title,  or  the  proceedings  of  the  road 
company,  or  any  officials  connected  with  the  title."  And  hark- 
ing back  to  Marshall's  celebrated  precedents  in  the  Arrendondo 
and  other  cases,  he  held  that  where  the  Government  delegated 
power  to  an  official  to  certify,  the  evidence  of  that  official  was 
final  and  conclusive. 

Yet  Brewer  was  forced  to  admit  that  the  allegations  that  the 
certificates  had  been  obtained  by  fraud  were  uncontested. 
"  Therefore,"  said  he  on  this  point,  "  as  the  inquiry  is  now  pre- 
sented, it  must  be  in  the  light  of  the  uncontested  allegation 
that  the  certificates  were  obtained  through  the  fraudulent  acts 

50  41  Federal  Reports,  624-626. 
61  Ibid.,    501. 


UNDER    CHIEF   JUSTICE    FULLER  603 

of  the  road  company."  52  But,  he  quickly  went  on,  the  pur- 
chasers were  innocent ;  they  knew  that  the  governor  had  certi- 
fied, and  thought  the  title  valid.  There  were  other  points  in  the 
decision,  but  these  were  the  main  grounds.53 


Justice  Brewer's  Doctrine. 

In  a  later  decision,  Justice  Brewer,  it  may  be  parenthetically 
remarked,  openly  avowed  that  fraud  mattered  nothing,  so  long 
as  legal  title  was  held. 

This  nephew  of  Justice  Field  was  even  franker  than  Field 
himself  in  justifying  the  products  of  fraud  and  theft.  Justice 
Brewer,  on  November  12,  1894,  laid  down  the  naked  doctrine 
that  it  was  immaterial  how  an  owner  got  his  property.  "  He 
may  have  made  his  fortune  by  dealing  in  slaves,  as  a  lobbyist, 
or  in  any  other  way  obnoxious  to  public  condemnation ;  but,  if 
he  has  acquired  the  legal  title  to  his  property,  he  is  protected 
in  its  possession,  and  cannot  be  disturbed  until  the  receipt  of 
the  actual  cash  value.  The  same  rule  controls  if  railroad  prop- 
erty is  to  be  appropriated.  No  inquiry  is  open  as  to  whether 
the  owner  has  received  gifts  from  State  or  individuals,  or 
whether  he  has,  as  owner,  managed  the  property  well  or  ill,  or 
so  as  to  acquire  a  large  fortune  therefrom.  It  is  enough  that 
he  owns  the  property  —  has  the  legal  title ;  and,  if  so  owning, 
he  must  be  paid  •  the  actual  cash  value  of  the  prop- 
erty. .  .  ,"54 

Could  there  be  a  more  undisguised  justification  of  every 
species  of  fraud  and  theft?  In  more  cautious  phraseology  the 
doctrine  had  been  often  handed  down  from  the  Supreme  Court 

52  See,   148  U.   S.   Reports,  44.     Among  the  attorneys   for  the  com- 
panies  were   Dolph,    Ballinger,    Mallory,    Simon   and   others,    some  of 
whom  became  United  States  Senators. 

53  Ibid.,  31-49. 

54  See,  Case  of  Ames  vs.  Union  Pacific  Company,  64  Federal  Reports, 
176. 


604  HISTORY  OF  THE  SUPREME   COURT 

bench,  but  here  was  Justice  Brewer  serving  blunt  declaration 
that  irrespective  of  what  flagrant  fraud  and  general  scoundrel- 
ism  were  used,  the  Supreme  Court  of  the  United  States 
would  justify  it  and  sanction  the  results,  provided  the  form 
of  getting  legal  title,  which  is  to  say,  paper  title,  was  accom- 
plished. 


Results  of  the  Wagon-Roads  Decision. 

One  of  the  effects  of  the  wagon-road  land  grant  cases  may 
be  seen  by  reverting  to  Commissioner  Herbert  Knox  Smith's 
report  on  the  timber  monopoly.  Of  the  ownership  of  timber 
lands  in  the  Pacific  States  and  Northwest,  he  details  that  the 
Southern  Pacific  Railroad  Company,  the  Weyerhaeuser  Tim- 
ber Company,  and  the  Northern  Pacific  Railway  Company 
(including  their  subsidiary  companies)  own  238,000,000,000 
feet  of  standing  timber. 

The  timber  holdings  of  the  Southern  Pacific  Railroad  Com- 
pany extend  from  Portland,  Oregon,  to  Sacramento  —  a  dis- 
tance of  682  miles.  "  This  holding,"  he  further  explains,  "  con- 
sists of  the  unsold  part  of  the  Government  land  grants  in 
Oregon  and  Northern  California  held  by  the  Oregon  and  Cali- 
fornia Railroad  Company  and  the  Central  Pacific  Railroad  Com- 
pany, subsidiaries  of  the  Southern  Pacific  Railroad  Company." 
The  timber  holding  of  the  Southern  Pacific  Railroad  Company 
is  the  largest  in  the  United  States,  amounting  to  more  than  106,- 
000,000.000  feet,  of  which  about  71.000,000,000  feet  is  in  Ore- 
gon.55. The  Weyerhaeuser  Timber  Company  owns  96,000,000,- 
ooo  feet  of  timber,  and  the  Northern  Pacific  Railway  Company 
about  36,000,000,000  feet.  Considerable  of  this  area  was  ap- 
propriated by  means  of  the  military  wagon-roads  decisions. 

55  The  Government  is  now  suing  to  annul  title  to  the  Southern  Pa- 
cific lands  in  Oregon  for  non-compliance  with  the  terms  of  the  original 
grants.  It  has  also,  it  may  be  added,  brought  an  action  against  the 
same  company  to  recover  6,100  acres  of  oil  lands  in  Kern  County, 
California,  alleging  that  they  were  patented  by  fraud. 


UNDER   CHIEF   JUSTICE    FULLER  605 

"  The  present  commercial  value  of  the  privately  owned  stand- 
ing timber  in  the  country,  not  including  the  value  of  the  land," 
the  report  further  says,  "  is  estimated  (though  such  an  estimate 
must  be  very  rough)  as  at  least  $6,ooo,oco,ooo.  Ultimately  the 
consuming  public  will  have  to  pay  such  prices  for  lumber  as 
will  give  this  timber  a  far  greater  value."  50 

Here,  at  the  risk  of  repetition,  we  will  again  observe  that 
Justice  Field,  Brewer's  uncle,  had  been  placed  on  the  Supreme 
Court  Bench  at  the  solicitation  of  Leland  Stanford,  one  of  the 
four  magnates  then  controlling  the  Central  and  the  Southern 
Pacific  railroads  with  all  their  auxiliary  and  adjunct  corpora- 
tions. And  Stanford  was  a  powerful  member  of  the  United 
States  Senate  at  the  time  of  Brewer's  appointment  to  the  Su- 
preme Court  of  the  United  States. 

Another  Great  Railroad  Grant  Validated. 

The  decisions  that  we  have  narrated  are  but  a  few  typical 
cases  of  the  many  determined  by  the  Supreme  Court  of  the 
United  States  favorable  to  railroad  corporations.  Another 
characteristic  decision  written  by  Brewer  was  that  finally  vali- 
dating an  enormous  land  grant  to  the  Des  Moines  Navigation 
and  Railway  Company. 

This  company,  as  we  have  related,  had  obtained  by  proved 
briberies,57  the  passage  of  an  act  by  Congress,  in  1846,  granting 
it  an  area  five  miles  (in  alternate  sections)  on  each  side  of  the 
Des  Moines  River,  Iowa.  Subsequently,  the  company  claimed 
that  the  grant  included  lands  along  the  entire  course  of  the 
river  to  its  source.  If  this  claim  held,  the  company  would  get 
many  hundreds  of  thousands  additional  acres. 

66  "  Summary  of  Report  of  the  Commissioner  of  Corporations  on  the 
Lumber  Industry,"  Part  1 :  5,  25,  26,  etc. 

57  The  report  of  the  select  committee  of  Congress  exposing  the  cor- 
ruption used  is  set  forth  in  Report  No.  243,  Vol.  Ill,  Reports  of  Com-: 
mittees,  Thirty-fourth  Congress,  Third  Session,  1856-57.  The  corrup- 
tion fund  amounted  to  $100,000. 


606  HISTORY   OF   THE   SUPREME   COURT 

The  contention  was  submitted  in  1849  to  Robert  J.  Walker, 
Secretary  of  the  Treasury,  which  department  then  exercised 
jurisdiction  over  the  public  lands.  Walker,  as  we  have  seen, 
had  himself  profited  notoriously  from  land  grabbing.  In  his 
opinion  on  the  issue,  Walker  decided  that  a  stretch  of  900,000 
acres  above  Raccoon  Fork  lay  within  the  grant.58  His 
successor,  Thomas  Ewing,  held  the  contrary.  So  the  question 
remained  unsettled  until,  in  1858,  1860  and  1861,  the  company 
lobbied  acts  through  Congress  and  the  Iowa  Legislature  — 
acts  so  ingeniously  worded  that  they  seemed  to  be  for  the  in- 
terests of  actual  settlers,  but  were  in  reality  disguised  measures 
for  the  company's  benefit. 

Litigation,  however,  continued  for  forty  years.  In  1889  the 
Government  brought  a  suit  to  reclaim  the  lands  from  the  com- 
pany. The  grant,  it  charged,  had  been  merely  given  by  legis- 
lative enactment  upon  a  trust  for  a  distinct  purpose.  That  pur- 
pose was  to  improve  the  navigation  of  the  river.  But,  so  the 
Government  alleged,  the  company  "  did  but  a  very  small  frac- 
tion of  the  work  it  pretended  to  do;  it  abandoned  the  under- 
taking covered  by  its  contract."  Notwithstanding  this  aban- 
donment it  grabbed  a  "  vast  land  grant."  On  the  other  hand 
"  thousands  of  hard-working  pioneers  have  settled  and  made 
their  homes  upon  the  lands."  Then,  also,  other  railroad  com- 
panies claimed  the  lands  under  their  grants. 

"  This  litigation,"  declared  the  Government,  "  is  in  the  in- 
terests of  bona-fide  settlers  against  speculators  who  have  ap- 
propriated these  lands  in  violation  of  law  and  of  the  principles 
of  common  honesty.  .  .  ." 50  The  Supreme  Court  of  the 
United  States,  in  January,  1892,  decided  in  favor  of  the  Des 
Moines  Navigation  and  Railway  Company ;  Justice  Brewer  de- 
livered its  opinion. 

58  See,  Case  of  Dubuque  and  Pacific  Railroad  Company  vs.  Litchfield, 
•XXIII  Howard,  85. 

59  U.  S.  vs.  Des  Moines  Navigation  and  Railway  Company,  142  U.  S. 
Reports,  540. 


UNDER   CHIEF   JUSTICE    FULLER  607 

A  Legislature's  "Good  Faith." 

Instead  of  admitting  (what  the  fact  was)  that  the  Govern- 
ment was  acting  directly  for  the  settlers,  Brewer  diverted  the 
point  in  this  fashion:  The  United  States,  he  said,  was  only 
a  nominal  party  "  whose  aid  is  sought  to  destroy  the  title  of  the 
company  " ;  therefore,  the  defense  of  laches  —  that  it  was  a 
stale  claim  —  should  be  sustained.  Justice  Brewer  well  knew 
that  no  statute  of  limitations  ran  against  the  Government ;  hence 
his  object  in  relegating  the  Government  as  a  nominal  party. 
He  also  was  not  aware  of  the  fact  that  bitter  contests  between 
corporation  and  settlers  had  gone  on  continuously,  and  that  the 
claims  of  the  settlers  had  never  become  dormant. 

But  what  of  the  original  acts  lobbied  through  by  fraud  and 
bribery?  Out  again  came  Marshall's  time-worn  fiction. 
"  Knowledge  and  good  faith  of  a  legislature,"  echoed  Brewer, 
"  are  not  open  to  question,  but  the  presumption  is  conclusive 
that  it  acted  in  full  knowledge  and  good  faith.  .  .  ."  °° 
The  records  were  full  of  evidences  of  bribery,  but  the  Supreme 
Court  pretended  to  be  innocent  of  knowing  them,  or  even  of 
giving  them  credit. 

Without  examining  this  decision  further  it  is  only  necessary 
to  draw  a  parallel  between  it  and  that  in  the  Illinois  Central 
Railroad  water:front  case  to  show  the  glaring  inconsistency 
that  the  Supreme  Court  continuously  betrayed. 

In  the  Illinois  Central  case  the  Supreme  Court  (by  a  vote  of 
four  to  three)  decided,  as  we  have  seen,  that  the  Legislature 
held  the  submerged  water-front  lands  in  Chicago  in  trust  for 
the  people. 

But  in  the  Des  Moines  Navigation  and  Railway  Company 
case,  it  repudiated  the  Government's  contention  that  the  Iowa 
lands  were  held  in  similar  trust. 

It  may  be  pertinently  inquired,  if  one  kind  of  property  was 
held  in  trust  for  the  people,  why  not  all  other  kinds  ? 

«o  Ibid.,  543. 


608  HISTORY   OF   THE    SUPREME    COURT 

By  such  decisions  the  Supreme  Court  revealed  itself  as  an 
arbitrary,  dictatorial  body,  often  contradicting  its  own  dogmas, 
and  fashioning  constructions  as  it  pleased,  only  to  upset  those 
constructions  when  the  dominant  capitalist  interests  so  re- 
quired it. 

Justice  Field  Serves  Notice. 

Indeed,  on  one  noted  occasion,  Justice  Field  in  his  apparent 
anxiety  to  be  of  service  to  the  Central  Pacific  Railroad  so  far 
transgressed  the  ordinary  rules  of  judicial  procedure  and  pru- 
dent caution,  that  his  action  caused  scandal  even  among  the 
legal  fraternity.  In  a  suit  brought  by  California  against  the 
Central  Pacific,  he  announced  that  if  that  State  attempted  to 
force  its  stand,  an  injunction  could  be  applied  for  and  would 
undoubtedly  be  granted.61  Now  as  he  was  the  very  Supreme 
Court  Justice  who  presided  over  the  California  circuit,  his 
announcement  was  equivalent  to  notifying  the  Central  Pacific 
that  it  should  apply  to  him  for  an  injunction  and  would  get  it. 
This  kind  advice  Field  gave  at  a  stage  in  the  suit  when  no 
steps  whatever  had  yet  been  taken  for  any  such  writ. 

In  another  noted  case,  Field's  nephew,  Brewer,  wrote  a  Su- 
preme Court  decision  which,  in  order  to  validate  a  succession 
of  land  claims,  absolutely  contradicted  and  contravened  a  dic- 
tum that,  for  the  same  purposes,  had  been  followed  since  Mar- 
shall's day. 

A  Memorable  Decision. 

The  case  was  that  of  Camou  vs.  the  United  States,  for  con- 
firmation of  a  private  land  claim  of  20,034.62  acres,  near  Santa 
Cruz,  Arizona.  This  land  was  claimed  under  an  alleged  grant 
and  sale  made  by  the  Mexican  authorities,  in  1827-1828.  In 
1853,  President  Santa  Anna  of  Mexico  issued  a  decree  declar- 
ing that  "  the  public  lands,  as  the  exclusive  property  of  the 
nation,  never  could  have  been  alienated  by  virtue  of  decrees, 

01  Central  Pacific  Railroad  vs.  California,  162  U.  S.  Reports,  128. 


UNDER    CHIEF   JUSTICE    FULLER  609 

orders  and  enactments  of  the  legislatures,  governments  or  local 
authorities."  Article  II  of  the  decree  ordered  that  all  sales 
or  grants  made  without  the  approval  of  the  Federal  Govern- 
ment, according  to  law,  were  null  and  void.  Section  III  pro- 
vided for  the  recovery  of  these  lands,  and  Section  IV  pro- 
hibited their  confirmation.  A  month  later,  Santa  Anna  signed 
a  treaty  with  the  United  States  by  which  that  part  of  Arizona 
comprised  in  the  Gadsden  purchase,  was  transferred  to  the 
United  States.  The  Camou  claim  was  in  this  territory. 

Another  decree  issued  by  Santa  Anna,  on  July  5,  1854,  was 
even  more  specific  and  drastic.  It  practically  annulled  an  im- 
mense number  of  grants  which  had  been  obtained  unlawfully 
or  by  fraud  and  collusion.02  Naturally  enough,  the  holders  of 
these  and  other  claims  struck  back  by  manufacturing  a  revo- 
lution, and  Santa  Anna  was  deposed.  His  successor,  Juan 
Alvarez,  a  creature  of  the  land  appropriators,  issued  a  decree 
repealing  Santa  Anna's  decrees,  and  declaring  the  titles  valid. 

Thirty-seven  years  later  —  in  1891  —  Camou  filed  claim  for 
the  confirmation  of  the  tract  claimed  by  him.  Meanwhile, 
rich  mining  deposits  had  been  discovered  in  that  locality.  The 
Court  of  Private  Land  Claims  decided  in  favor  of  the  Govern- 
ment. Santa  Anna's  decrees,  it  held,  were  valid.  He  was 
President  of  Mexico,  and  the  United  States  Government  had 
recognized  him  as  such  when  it  negotiated  the  Gadsden  Pur- 
chase with  him.  Accordingly,  the  Court  of  Private  Land 
Claims  held,  his  decrees  had  to  be  accepted  as  authoritative. 

Camou  appealed  to  the  Supreme  Court  of  the  United  States. 
Seldom  if  ever,  had  this  Court  been  put  in  a  more  ticklish  or 
embarrassing  position.  In  the  cases  in  which  it  had  validated 
titles  to  tens  of  millions  of  acres  in  Florida,  Louisiana,  Mis- 
souri, California  and  other  sections  it  had  consistently  held 
that  the  certificate  of  the  officials  in  office  was  final  and  con- 
clusive, even  if  the  tenure  of  those  officials  were  brief,  and 

92  These  decrees  are  set  forth  in  full  in  171  U.  S.  Reports,  288-289. 


6lO  HISTORY    OF   THE    SUPREME   COURT 

changes  and  revolutions  constantly  upheaved  new  men  into 
authority.03 

So  far  as  Mexican  law  was  concerned  the  Supreme  Court 
of  the  United  States  could  not  apply  its  celebrated  dictum  that 
no  legislation  could  be  passed  impairing  the  sacred  obligation 
of  a  contract.  On  the  other  hand,  if  the  decision  of  the  Court 
of  Private  Land  Claims  were  sustained  it  would  mean  that 
titles  to  ivast  areas  of  land  covered  by  alleged  Mexican  grants, 
including  gold,  silver,  copper  and  other  mines  of  fabulous 
riches,  would  be  declared  defective. 

The  Supreme  Court  Finds  a  Way  Out. 

The  Supreme  Court  of  the  United  States  was  in  a  quandary. 
How  was  it  to  get  around  the  admitted  facts  ? 

By  an  extraordinary  decision  it  achieved  the  feat  of  squar- 
ing the  circle  to  its  own  satisfaction.  First  it  admitted  (what 
it  could  not  deny)  that  Santa  Anna  had  been  the  actual  and 
recognized  President,  and  that  the  United  States  had  "  right- 
fully dealt  with  him  in  a  political  way  in  the  negotiation  and 
purchase  of  territory."  But  Brewer  went  on  with  a  species 
of  reasoning  that  no  other  court  in  the  world  would  or  could 
have  used.  "  When,"  he  said,  "  the  courts  are  called  upon  to 
inquire  as  to  personal  rights  existing  in  the  ceded  territory,  a 
mere  declaration  by  the  temporary  executive  cannot  be  deemed 
absolutely  and  finally  controlling.  .  .  .  It  is  going  too  far 

63  Justice  Brewer  was  not  ignorant  of  the  fact  that  Mexican  gov- 
ernors fraudulently  and  indirectly  made  grants  to  themselves.  At  the 
exact  time  of  his  decision  in  the  Camou  case,  the  admitted  facts  in  the 
case  of  Faxon  vs.  U.  S.  revealed  that,  in  1842,  Governor  Manuel  Gan- 
dara,  of  Sonoro,  boldly  seized  lands  belonging  to  the  Indian  pueblo, 
and  granted  them  to  his  brother-in-law,  Francisco  Aguilar,  to  be  held 
in  trust  for  him  (Gandara).  The  purchase  money  was  supplied  by 
Gandara.  (171  U.  S.  Reports,  246.) 

It  is  interesting  to  observe  that  Francis  J.  Heney,  who  later  was  so 
much  puffed  up  as  an  exposer  of  corruption,  was  Faxon's  attorney  in 
this  case.  It  is  also  worth  noting  that  the  Supreme  Court  of  the  United 
States  decided  that  Gandara  never  had  been  vested  with  power  to  make 
the  grant.  Compare  with  decison  in  the  Camou  case. 


UNDER   CHIEF  JUSTICE   FULLER  6l  I 

to  hold  that  the  mere  declaration  of  law  made  by  a  temporary 
dictator,64  never  enforced  as  against  an  individual  grantee  in 
possession  of  lands,  is  to  be  regarded  as  operative  and  deter- 
minative of  the  latter's  rights."  Brewer  concluded,  "  We 
think  this  arbitrary  declaration  made  by  a  temporary  dictator 
was  not  potent  to  destroy  the  title."  °5 

The  decision  of  the  Court  of  Private  Land  Claims  was  re- 
versed; and  that  railroad,  mining  and  other  corporations,  in- 
stead of  the  Government,  now  hold  incalculably  rich  areas  of 
copper,  gold  and  silver  mines,  oil  and  timber  lands  and  other 
natural  resources,  is  due  to  that  decision  and  accompanying 
decisions  of  the  Supreme  Court  of  the  United  States.  To 
say  that  the  Southern  Pacific  Railroad  was  one  of  the  cor- 
porations interested  is  but  stating  a  fact. 

An  Administration  of  Railroad  Lawyers. 

During  Cleveland's  administration,  new  Justices  came  on 
the  Supreme  Court  Bench.  One  of  these  appointments  was 
that  of  United  States  Senator  Edward  D.  White,  whose  career 
we  shall  describe  in  a  later  chapter.  The  other  was  that  of 
Rufus  W.  Peckham.  Before  reviewing  Peckham's  career,  it 
is  important  to  summarize  an  especially  notable  decision  which 
was  argued  just  before  Peckham  went  on  the  Bench. 

President  Cleveland  himself  had  been  a  railroad  attorney; 

64  General  Santa  Anna  was  elected  President  of  Mexico  for  the  term 
beginning  April  i,  1833.  He  filled  that  office  from  1841  to  1845.  De- 
posed and  exiled,  he  was  recalled  and  made  President  in  1846,  and 
commanded  the  army  in  the  Mexican  War  with  the  United  States. 
After  Scott's  occupation  of  Mexico,  he  resigned,  but  was  recalled  by 
the  army  and  made  president  in  April,  1853.  A  revolution  of  the  land 
appropriators  drove  him  into  exile  in  August,  1855. 

05  See,  Case  of  Camou  vs.  U.  S.,  171  U.  S.  Reports,  277-291.  Also 
similar  case  of  Perrin  vs.  U.  S.,  Ibid.,  292.  United  States  Senator  John 
T.  Morgan  was  Perrin's  attorney.  Morgan  had  long  been  the  law 
partner  of  John  W.  Lapsley,  so  conspicuous  in  the  Texas  land  frauds. 
Early  in  his  political  career,  Morgan  was  attorney  for  the  Selma  and 
Gulf  Railroad,  of  which  Lapsley  was  a  director.  See,  45  Alabama 
Reports,  698  (year  1871),  and  46  Ibid.,  235,  etc. 


6l2  HISTORY  OF  THE   SUPREME  COURT 

he  had  represented  the  Canada  Southern  Railway  and  other 
corporations.  Likewise  many  of  the  members  of  his  cabinet, 
or  his  close  associates,  were  railroad  attorneys  or  railroad 
stockholders.  Attorney-General  Olney  had  been  a  director  of 
the  Philadelphia,  Wilmington  and  Baltimore  Railroad/'6  now 
an  integral  part  of  the  Pennsylvania  Railroad  system.  Olney 
had  also  been  counsel  for  the  Eastern  Railroad  Company,  the 
Framingham  and  Lowell  Railroad  and  other  railroads."57  Wil- 
liam C.  Whitney,  who  had  been  Secretary  of  the  Navy  under 
Cleveland's  first  administration,  was  the  chief  promoter  ?.nd 
campaign  fund  accumulator  for  Cleveland's  renominatiou  and 
reelection  in  1892.  Whitney  was  allied  by  marriage  with 
Senator  Henry  'B.  Payne,  railroad  magnate  and  treasurer  of 
the  Standard  Oil  Company.  Whitney,  at  this  fhne,  was  asso- 
ciated with  other  capitalists  in  control  of  tb<;  Metropolitan 
Street  Railway  Company  of  New  York.  According  to  the 
specific  charges  uttered  and  published  by  Col.  W.  N.  Amory, 
these  "  financiers  "  stole  at  least  $30,000,000  by  the  manipula- 
tion of  that  company,  and  an  estimated  $60,000,000  in  addi- 
tion.68 

Whitney  had  been  associated  in  1884-1885  with  William  H. 
Vanderbilt,  the  Rockefellers,  Stephen  B.  Elkins,  D.  O.  Mills  and 
other  capitalists  in  the  Southern  Pennsylvania  Railroad  transac- 
tion —  a  very  remarkable  piece  of  profitable  manipulation  and 

66 "Poor's  Railroad  Manual"  for  1880,  p.  381. 

67  124  Mass.  Reports,  520  and  528;  130  Ibid.,  195;  133  Ibid.,  115,  etc. 

68  See  Amory's  "  The  Truth  About  Metropolitan,"  1906,  in  which  the 
figures  and  modus  opcrandi  are  set  forth  at  length.     Amory  has  never 
been  sued  for  libel,  nor  have  his  facts  been  shown  erroneous.     Much 
of  the  corruption  charged  against  the  Metropolitan  Street  Railway  Com- 
pany was  confirmed  by  the  testimony  before  the  New  York  Legisla- 
tive   ("Graft   Hunt")    Committee,  in   September,    1910.     It   was   then 
specifically  revealed  that  the  bribery  of  prominent  members  of  the  Leg- 
islature was   an  habitual   performance,   and  that  the  corruption    fund 
annually  used  was  not  merely  considerable,  but  great.     Another  form 
of  corruption  was  that  of  contributions  to  capitalist  political  parties. 
In  the  year  1902,  for  example,  the  Metropolitan  Street  Railway  Com- 
pany contributed  $18,000  to  the  New  York  State  Democratic  Committee 
and  $25,000  to  the  Republican  State  Committee. 


UNDER   CHIEF   JUSTICE   FULLER  613 

duplicity  described  elsewhere.69  Whitney  was  in  the  closest 
touch  with  the  great  capitalist  interests.  So,  also,  was  Daniel 
S.  Lament,  Cleveland's  former  private  secretary,  and  Secre- 
tary of  War  under  Cleveland's  second  administration.  Sub- 
sequent developments  revealed  him  associated  with  J.  Pier- 
pont  Morgan,  George  F.  Baker  and  other  powerful  capitalists 
in  the  Northern  Securities  Company,  illegally  formed  to  com- 
bine the  interests  of  the  Northern  Pacific  Railroad  and  the 
Great  Northern  Railroad.70 

The  United  States  Senate  was  filled  with  railroad  attorneys 
or  magnates:  Allison,  Spooner,  Gorman,  Aldrich  (whose 
daughter  married  John  D.  Rockefeller,  Jr.),  Hoar  and  many 
other  representatives  of  railroad  or  associated  interests  were 
conspicuous  in  that  body.  One  of  the  most  eminent  Senators, 
Cushman  K.  Davis,  had  represented  Russell  Sage  and  had 
also  been  attorney  for  Hill's  Great  Northern  Railway.71  The 
Senators  belonging  to  the  capitalist  interests  were  in  the  ma- 
jority, and  held  control  over  the  confirmation  of  appointments: 

But  at  this  juncture  there  was  a  group  of  men  in  both 
branches  of  Congress  who,  while  comparatively  small  in  num- 
ber, were  able  by  their  persistence  and  agitation  to  exert  an 
influence  on  legislation  and  to  expose  predatory  bills.  These 
were  the  representatives  of  the  Populist  Party,  which  in  the 
election  of  1892  polled  more  than  a  million  votes,  and  put 
five  Senators  and  ten  Representatives  in  Congress.  The  old 
political  parties  viewed  this  formidable  vote  with  dread  and 
apprehension.  It  was  essentially  a  middle-class  movement. 
This  was  the  reason  at  that  particular  time  why  its  progress 
and  strength  evoked  dismay  among  the  great  capitalists,  who 
were  as  yet  very  far  from  the  final  process  of  crushing  the 
middle  class  and  consummating  their  movement  for  concen- 

69  In  the  "  History  of  the  Great  American  Fortunes,"  Vol.  II :  208-210. 

70  See  Case  of  Northern  Securities  Company  vs.  U.  S.,  193  U.  S.  Re- 
ports, 202.     Lament  was  sued  by  the  Government  jointly  with  Morgan, 
Baker,  Stetson,  etc. 

71 161  U.  S.  Reports,  702;  163  Ibid.,  653,  etc. 


614  HISTORY   OF    THE   SUPREME    COURT 

tration  of  control  of  all  transportation  systems  and  industry. 
Few  as  'the  Populist  representatives  in  Congress  were,  they 
had  behind  them  this  large  voting  strength.  Moreover,  even 
a  few  forceful  men  in  Congress  then  proved  themselves  able 
to  compel  the  majority  to  make  a  certain  concession. 

The   Income-Tax  Bill. 

This  concession  was  the  passage  of  the  bill  for  the  taxation 
of  incomes.  Bitterly  opposed,  the  income-tax  bill  became  a 
law  in  1894  without  President  Cleveland's  signature.  On  five 
different  occasions  the  Supreme  Court  of  the  United  States 
had  declared  the  income  tax  constitutional. 

The  large  capitalist  interests  were  determined  to  do  away 
with  this  law  by  one  means  or  another.  To  collect  a  specific 
new  tax  it  was  necessary  —  at  least  it  was  held  to  be  so  —  that 
Congress  should  pass  an  appropriation  for  that  purpose.  Al- 
though the  Government  had  already  begun  preparations  to 
collect  the  tax,  the  Secretary  of  the  Treasury,  Carlisle,  pre- 
tended that  he  had  no  funds  for  the  purpose ;  this  was  the  same 
Carlisle  who  in  1895  turned  over  a  bond  issue,  under  circum- 
stances of  the  greatest  scandal,  to  a  syndicate  headed  by  J. 
Pierpont  Morgan,  thus  virtually  giving  that  syndicate  a  profit 
of  $18,000,000.  Morgan's  lawyer,  Francis  Lynde  Stetson,  had 
been  Cleveland's  law  partner  from  1889  to  1892,  and  was  now 
a  frequent  confidential  visitor  to  the  White  House. 

A  Bit  of  Secret  History. 

What  happened  next  was  related  to  this  author  by  Senator 
Pettigrew.  '  The  House,"  he  said,  "  passed  an  urgency  def- 
icit bill  appropriating  $250,000  to  collect  the  tax.  When  this 
bill  came  before  the  Senate,  Senator  Quay  of  Pennsylvania 
telephoned  me  to  come  to  his  house.  There  I  met  a  certain 
Standard  Oil  magnate.  Quay  argued  that  the  Treasury  De- 


UNDER    CHIEF   JUSTICE    FULLER  615 

partment  had  been  tampered  with,  and  urged  me  to  say  so  in 
the  Senate,  and  to  get  me  and  the  other  four  Senators  to  vote 
against  the  bill.  His  object,  of  course,  was  to  defeat  the  bill, 
so  that  the  Treasury  Department  could  again  fall  back  upon 
the  excuse  that  it  had  no  available  funds  with  which  to  collect 
the  tax.  '  There's  $250,000  for  you,  if  you  do  this,'  Quay 
assured  me.  I  refused." 

The  bill  was  passed.  There  was  now  only  one  possible  way 
to  get  rid  of  the  income  tax  act ;  this  was  to  have  it  declared 
unconstitutional  by  the  Supreme  Court  of  the  United  States. 
The  preliminaries  to  an  action  were  thus  arranged : 

The  board  of  directors  of  the  Farmers'  Loan  and  Trust 
Company  met  and  passed  a  resolution  that  they  would  volun- 
tarily pay  the  income  tax,  which  notice  was  sent  to  all  of  the 
stockholders.  One  of  the  prominent  capitalists  in  the  com- 
pany, Pollock,  then  brought  a  suit  to  restrain  the  company 
from  paying  the  tax. 

When  the  case  was  argued  before  the  Supreme  Court  of  the 
United  States,  Clarence  A.  Seward  represented  Pollock,  and 
Joseph  H.  Choate,  a  prominent  corporation  attorney,  was  the 
Farmers'  Loan  and  Trust  Company's  principal  counsel.72  To 
neutralize  the  rebuttal  that  the  Supreme  Court  during  past 
times  had  itself  on  no  less  than  five  occasions  held  that  the 
income  tax  was  valid,  Choate  submitted  a  lengthy  list  of 
precedents  to  persuade  the  court  that  it  did  not  have  to  follow 
its  own  precedents ! 

Justice  Jackson  was  ill  at  his  home  in  Tennessee,  which  left 
eight  Justices  sitting.  From  later  developments  it  is  quite 
clear  that  at  first  five  members  of  the  whole  body  were  op- 
posed to  declaring  the  income  tax  unconstitutional.  On  April 
8,  1895,  the  Supreme  Court  declared  some  of  the  clauses  of 
the  act  unconstitutional  but  the  main  point  was  not  passed 
upon  until  May  20,  1895. 

72  In  the  New  York  Times,  issue  of  June  2,  1907,  the  statement  was 
made  that  Choate  received  a  fee  of  $200,000  for  his  argument  in  this 
case. 


6l6  HISTORY   OF    THE    SUPREME   COURT 

In  the  meantime,  Justice  Jackson,  although  sick  and  near 
death,  was  urgently  solicited  to  hurry  to  Washington  to  par- 
ticipate in  the  final  vote.  According  to  a  despatch  in  the  New 
York  World,  published  May  7,  1895,  "  the  Baltimore  and 
Ohio  Railroad  which,  as  a  corporation,  was  anxious  to  have 
the  income  tax  declared  unconstitutional,  was  eager  to  land 
Jackson  in  Washington.  A  sleeping  car  was  sent  to  Belle 
Meade  to  enable  him  to  get  a  comfortable  sleep  and  to  journey 
with  the  least  fatigue."  That  this  insinuation  against  Jackson 
was  without  foundation  was  soon  shown. 


A  Justice   Changes  His  Mind. 

When  the  final  vote  was  taken,  it  turned  out  that  one  Justice 
had  changed  his  mind,  "  over  night,"  and  arrayed  himself 
against  the  income  tax.  This  Justice  was  said  to  be  Shiras 
who,  as  we  have  seen,  came  from  the  same  State  as  Senator 
Quay,  and  who  had  been  counsel  at  Pittsburg  for  the  Balti- 
more and  Ohio  Railroad  system.  The  pro-income  tax  news- 
papers freely  stated  that  the  vacillating  Justice  was  Shiras, 
and  denounced  him.  This  tergiversation  caused  a  very  conse- 
quential sensation,  and  was  bitterly  commented  upon  in  the 
speeches  and  declarations  of  supporters  of  the  income  tax. 
But,  of  course,  none  of  Shiras'  critics  were  so  venturesome 
as  to  make  specific  charges  of  improper  motives  or  acts;  had 
such  charges  been  made,  no  scintilla  of  proof  could  have  been 
discovered  in  the  records. 


The   Income  Tax  Declared  Unconstitutional. 

By  a  vote  of  five  to  four  the  Supreme  Court  declared  the 
whole  income  tax  act  unconstitutional,  in  that  it  was  a  direct 
tax  and  violated  the  Constitution  by  making  no  provision  for 
an  apportionment  among  the  States  according  to  the  popula- 
tion. 


UNDER    CHIEF   JUSTICE   FULLER 

One  of  the  reasons  given  by  Justice  Field  in  declaring  the 
income  tax  unconstitutional  was  that  it  would  reduce  judicial 
salaries ;  he  pointed  out,  with  great  seriousness  and  solicitude, 
that  the  judges  were  protected  by  that  clause  of  the  Consti- 
tution which  provides  that  their  compensation  "  shall  not  be 
diminished  during  their  continuance  in  office  " ! 

Justices  Brown,  Jackson,  Harlan  and  White  entered  a  vigor- 
ous dissenting  opinion.73  ".  .  .  By  its  present  construc- 
tion of  the  Constitution,"  said  Harlan,  "  the  Court  for  the  first 
time  in  all  its  history  declares  that  our  Government  has  been 
so  framed  that  in  matters  of  taxation  for  its  support  and 
maintenance  those  who  have  incomes  derived  from  the  renting 
of  real  estate  or  from  the  leasing  or  using  of  tangible  property, 
bonds,  stock,  and  investments  of  whatever  kind,  have  privi- 
leges that  cannot  be  accorded  to  those  having  incomes  derived 
from  the  labor  of  their  hands  or  the  exercise  of  their  skill  or 
the  use  of  their  brains." 

But  this  decision  was  only  one  of  successive  decisions  fos- 
tering the  growth  of  capitalism,  and  conceding  its  increasing 
demands,  while  at  the  same  time  other  important  decisions 
were  forthcoming  inimical  to  the  working  class  and  aimed  to 
undermine,  if  not  destroy,  its  organized  defenses.  The  ag- 
grandizing of  plutocracy  and  hostile  decrees  against  working- 
class  action  went  hand  in  hand  in  the  productions  of  the 
Supreme  Court  of  the  United  States.  What  these  decisions 
were,  and  the  circumstances  and  forces  behind  them,  are  re- 
lated in  the  next  chapter. 

73  Chief  Justice  Fuller  wrote  the  majority  decision.  In  the  opinion 
rendered  on  April  8,  1895,  it  was  decided  that  rents  from  real  estate 
were  not  taxable  by  Congress  without  interstate  apportionment.  (157 
U.  S.  Reports,  429.)  The  final  decision  of  May  20  exempted  the  entire 
income  from  direct  taxation  by  Congress,  whether  that  income  were 
derived  from  rents  or  from  any  other  sources,  unless  the  tax  were 
apportioned  among  the  States  as  respected  population.  (158  U.  S. 
Reports,  601.)  Chief  Justice  Walter  Clark  of  the  North  Carolina  Su- 
preme Court  estimated  that  that  change  of  a  single  vote  saved  the  rich 
at  least  a  billion  dollars  a  year. 


CHAPTER  XV 


Seven  days  after  its  obliterating  the  income-tax  law,  the 
Supreme  Court  of  the  United  States  handed  down  a  decision 
which  was  then  regarded,  and  has  been  since,  by  both  legal 
profession  and  lay  public,  as  one  of  the  most  extraordinary 
on  record. 

The  Pullman  Workers'  Strike. 

This  decision  was  in  the  Debs  case,  which  was  a  result  of 
the  great  strike  of  the  railway  workers  in  1894.  That  strike 
originated  in  the  grievances  of  the  workers  in  the  Pullman 
Company's  shops.  Organized  in  1867  to  build  sleeping  cars, 
the  Pullman  Company,  by  methods  which  we  have  already 
described,1  possessed  itself  of  the  title  to  five  hundred  acres 
of  land  near  Chicago.  In  addition  to  constructing  its  plant, 
it  used  two  hundred  acres  for  the  building  of  what  it  called 
a  "  model "  town.  In  this  it  accordingly  owned  the  houses, 
the  water  and  gas  supply  —  and,  in  brief,  controlled  the  town 
of  Pullman  absolutely.  For  its  flimsy,  congested  habitations 
it  charged  its  workers  $18  a  month  rental ;  the  cost  of  gas  to 
the  Pullman  Company  was  thirty-three  cents  a  thousand  feet, 
yet  the  Company's  tenants,  comprising  its  own  workers,  had 
to  pay  $2.25  a  thousand  feet;  taking  advantage  of  the  com- 

1  In  the  preceding  chapter,  as  set  forth  in  the  Case  of  Speck  ct  al.  vs. 
Pullman,  by  deceit,  fraudulent  sales  and  other  methods  therein  detailed. 

618 


UNDER   CHIEF   JUSTICE   FULLER  619 

plaisance  of  municipal  officials,  the  company  bought  water  at 
four  cents  a  thousand  gallons,  and  charged  its  tenants  ten 
cents  a  thousand  gallons  for  that  same  water.  For  the  mere 
privilege  of  having  shutters  on  the  houses,  the  occupants  were 
taxed  fifty  cents  a  month. 

The  average  yearly  pay  of  the  Company's  wage  workers  was 
$613.86.  But  few  of  the  workers  ever  received  their  wages 
in  cash.  Tenants  of  the  company,  their  "  debts  "  to  the  com- 
pany were  subtracted  from  the  wages  due.  So  greatly  were 
they  exploited,  that  numerous  witnesses  testified  before  the 
Special  Commission  appointed  later  by  President  Cleveland 
that  at  times  their  bi-weekly  checks  amounted  to  sums  varying 
from  fifty  cents  to  one  dollar.  Nor  did  the  company  produce 
witnesses  to  disprove  these  statements. 

When,  in  the  year  1893,  a  panic  was  in  process,  the  company 
reduced  wages  one-fourth,  yet  it  made  no  reduction  whatever 
in  its  charges  for  rent,  water,  gas  and  other  necessities.  The 
company  asserted  that  its  diminution  of  business  and  profits 
compelled  this  reduction  in  wages.  But  the  report  of  the 
Government's  Special  Commission  subsequently  appointed  to 
investigate  the  causes  of  the  strike,  showed  that  the  Pullman 
Company's  statement  was  not  only  untrue,  but  flagrantly  so. 
This  report,  prepared  in  1895,  detailed  how  the  company's 
capital  had  been  increased  from  $1,000,000  in  1867  to  $36,- 
000,000  in  1894,  and  how  "  its  prosperity  has  enabled  the  com- 
pany to  pay  two  per  cent,  quarterly  dividends."  In  certain 
years,  however,  the  dividends  had  ranged  from  nine  and  one- 
half  to  twelve  per  cent.  The  Special  Commission  further  re- 
ported that  the  company  had,  in  addition,  laid  by  a  reserve  fund 
of  profits  in  the  form  of  a  surplus  of  $25,000,000  which  had 
not  been  divided.  For  the  year  ending  July  31,  1893,  the  dis- 
tributed dividends  amounted  to  $2-,52o,ooo,  and  the  wages  for 
that  year  were  $7,223,719.51.  In  the  ensuing  year,  when 
wages  were  reduced  one-fourth,  and  went  down  to  $4,471,- 


62O  HISTORY    OF    THE    SUPREME   COURT 

701.39,  the  stockholders  reaped  an  even  greater  amount  in 
dividends  than  in  the  preceding  year,  namely,  $2,880,000.- 

Hence,  it  is  evident  that  the  remonstrances  of  the  Pullman 
workers  against  the  intolerable  conditions  under  which  they 
had  to  labor  and  exist  were  more  than  well  founded.  The 
company  refusing  to  consider  their  grievances,  the  workers,  on 
May  n,  1894,  declared  a  strike.  The  interests  of  the  Pull- 
man Company  and  nearly  all  of  the  large  railroad  systems 
were  closely  associated ;  the  same  magnates  were  often  found 
as  stockholders  in  both ;  and  by  reason  of  its  immense  profits, 
the  company  was  continually  extending  its  holdings  in  railroad 
lines.  At  present  the  only  three  railroads  in  which  the  Pull- 
man Company  has  no  interest  are  the  St.  Paul,  the  New  York, 
New  Haven  and  Hartford,  and  the  Great  Northern. 


The  Great  Railway  Strike  of  1894. 

It  was,  therefore,  with  a  view  to  compelling  the  Pullman 
Company  to  come  to  terms  that  the  American  Railway  Union, 
under  the  leadership  of  Eugene  V.  Debs,  declared  a  general 
sympathetic  strike.  But  there  were  other  strong  reasons. 
For  twelve  years  the  General  Managers'  Association,  repre- 
senting twenty-four  railroads  centering  or  terminating  in  Chi- 
cago, had  been  in  aggressive  existence.  Leagued  together  in 
this  powerful  organization,  these  representatives  of  the  rail- 
road magnates  were  reducing  the  wages  of  railroad  workers 
below  the  level  of  subsistence,  and  on  the  other  hand  were 
combined  for  the  purpose  of  extorting  high  passenger  and 
freight  rates.  In  law  it  was  a  conspiracy  in  restraint  of 
trade,  but  it  is  needless  to  say  that  no  writ  of  arrest  had  ever 

2  See,  "  Report  on  the  Chicago  Strike  of  June  and  July,  1894,"  by  the 
U.  S.  Special  Commission,  1895.  It  may  be  added  that  the  Pullman 
Company's  present  capital  is  $120,000,000,  and  that  in  its  recent  report 
to  the  Interstate  Commerce  Commission  (1911)  it  admitted  that  it  never 
had  any  new  capital  paid  in  except  from  "  earnings."  At  the  same 
time,  it  has  been  paying  an  average  annual  dividend  of  eight  per  cent. 


UNDER   CHIEF  JUSTICE   FULLER  621 

been  issued  against  a  single  member  of  the  General  Managers' 
Association.  Neither  did  any  court  presume  to  issue  an  in- 
junction, sweeping  or  qualified.  Railroad  workers,  agitating 
for  better  conditions,  were  discharged  and  blacklisted,3  yet 
for  this  offense  the  General  Managers'  Association  was  not 
even  questioned  by  the  authorities.  This  systematic  cam- 
paign against  the  railroad  workers  led  to  the  formation  of 
the  American  Railway  Union,  composed  of  employes,  and 
was  one  of  the  contributing  causes  of  the  great  strike  of  1894. 

Repeating  their  successful  ruse  used  at  Pittsburg  in  the 
strike  of  1877,*  the  railroad  corporations  caused  cheap,  worn- 
out  freight  cars  to  be  set  on  fire,5  and  then  forthwith  accused 
the  strikers  of  violence  and  rioting.  This  charge  proclaimed 
through  twenty  thousand  subservient  newspapers,  preju- 
diced the  general  public  mind,  and  was  immediately  seized 
upon  as  a  pretext  for  the  ordering  out  of  Federal  troops. 
Evidently  Governor  Altgeld  knew  the  real  facts,  for  he  re- 
fused to  call  upon  the  President  for  troops.  In  violation  of 
the  law,  and  against  Altgeld's  protest,  President  Cleveland, 
ostensibly  to  quell  rioting,  but  in  reality  to  interfere  with 
strikers  assembling  and  picketing,  hurried  Federal  soldiers 
to  Illinois.  At  the  same  time  Federal  judges,  some  of  whom 
had  been  attorneys  for  the  railroads  involved,  issued  unprece- 
dented injunctions  which  even  went  so  far  as  to  forbid  the 
strikers  from  persuading  fellow  workers  to  quit  work. 

One  of  these  injunctions  was  issued  by  the  Federal  judge, 

3  See  testimony  affirming  the  general  existence  of  this  practice,  "  Re- 
port of  the  Industrial  Commission,  1900,"  Vol.  IV   (Transportation)  : 
pp.  52,  123,  516,  528,  etc. 

4  The  late  Carroll  D.  Wright,  so  favorably  and  widely  known  for  his 
work  as  United  States  Commissioner  of  Labor  and  in  other  fields,  re- 
lated in  his  "  Battles  of  Labor  "   (p.  122)   how  at  Pittsburg  a  number 
of  worthless   freight  cars  were  fired   by  railroad   emissaries,  and  the 
strikers  were  then  charged  with  riot.     Wright  wrote  that  from  all  he 
was  able  to  gather,  the  reports  that  the  railroads  manufactured  riots 
were  true. 

5  Parsons'  "  The  Railways,  The  Trusts  and  The  People,"  196.    Also 
see,  Report  of  Chicago  Chief  of  Police  for  1894. 


622  HISTORY  OF   THE   SUPREME   COURT 

Peter  S.  Grosscup,  at  Chicago.  It  was  notorious  that  Gross- 
cup  owed  his  position  to  the  influence  of  corporations ;  recent 
disclosures  regarding  his  conduct  both  before  he  was  a  judge 
and  since  that  time  are  supposed  to  have  been  instrumental 
in  causing  his  recent  resignation.  Grosscup's  brother,  Benja- 
min, was  a  Northern  Pacific  Railroad  attorney.  On  July 
3,  1908,  Charles  H.  Aldrich,  a  Chicago  attorney  who  had 
originally  indorsed  Grosscup  for  the  judgeship,  sent  to 
United  States  Attorney-General  Bonaparte  a  communication 
in  which  he  accused  Grosscup  of  having  asked  railroads  for 
free  transportation  for  himself  and  family  and  for  others. 
After  specifically  charging  Grosscup  with  other  alleged  mal- 
feasances, Aldrich  continued  with  this  specific  arraignment  of 
Judge  Grosscup's  methods : 

There  are  many  other  acts  calling  for  the  severest  censure  and  utterly 
incompatible  with  a  high  sense  of  judicial  integrity;  e.  g.,  his  connec- 
tion with  the  Mattoon  street  railroad  scheme.  You  will  note  that  he 
caused  this  company  to  have  business  relations  with  the  Guarantee 
Trust  Company  of  New  York,  which  had  then  but  recently  become  a 
complainant  in  his  court  and  upon  whose  bill  he  had  appointed  receivers 
for  all  the  traction  properties  of  the  north  and  west  sides.  It  is  known 
that  money  was  borrowed  through  the  assistance  of  the  people  repre- 
sented by  the  Guarantee  Trust  Company  to  enable  Mr.  Sampsell,  one 
of  the  receivers  and  at  the  same  time  clerk  of  the  United  States  Circuit 
Court,  to  pay  for  his  interest  in  the  property. 

The  receivership  was  a  friendly  one,  the  parties  seeking  a  reorgan- 
ization of  the  properties.  Ultimately,  they  desired  the  assistance  and 
cooperation  of  the  court  and  its  receivers.  When,  therefore,  Mr. 
Sampsell  applied  for  a  large  loan  to  the  parties  interested  in  the  litiga- 
tion, and  supported  his  application  with  a  letter  from  Judge  Grosscup, 
it  was  natural  that  these  parties  complied  with  the  request  through 
arrangements  with  the  Knickerbocker  Trust  Company.  Perhaps  this 
was  rendered  more  probable  by  the  order  entered  of  record  as  an 
excuse  for  violating  the  statute  forbidding  the  appointment  of  any 
clerk  of  court  as  receiver  except  for  good  cause  shown.  This  recited 
that  Mr.  Sampsell  was  appointed  because  he  was  near  to  the  court. 

The  subsequent  history  of  the  Mattoon  enterprise  has  been  shameful 
and  calculated  to  discredit  the  lectures  of  the  same  judge  delivered  in 


UNDER   CHIEF   JUSTICE   FULLER  623 

all  parts  of  the  country  on  the  subject  of  overcapitalization  and  popu- 
larization of  the  trust. 

This  history  need  not  be  followed.  The  view  I  wish  to  express  is 
that  a  judge  should  not  be  in  such  relations  to  litigants  and  receivers 
in  his  court. 

There  are  stories  of  a  large  speculative  account  carried  by  the  judge 
with  H.  B.  Hollins  &  Co.,  of  New  York,  who  were  among  the  principal 
holders  of  the  traction  securities,  and  back  of  the  suit  of  the  Guarantee 
Trust  Company.  I  have  no  positive  knowledge  on  this  subject. 

It  was  Grosscup  who,  at  a  critical  stage  in  the  strike, 
caused  Debs  and  his  associates  to  be  haled  up  for  contempt 
of  court,  and  it  was  Grosscup  who,  acting  as  prosecutor,  judge 
and  jury  all  in  one,  convicted  them  of  contempt  of  court, 
and  sentenced  them  to  jail. 


Habeas  Corpus  Denied  to  Debs. 

Debs,  on  January  14,  1895,  applied  to  the  Supreme  Court 
for  a  writ  of  habeas  corpus. 

His  counsel,  Lyman  Trumbull,  a  noted  lawyer  who  himself 
had  represented  corporations,  began  his  argument  by  reciting 
the  circumstances  of  "  the  extraordinary  proceeding  under 
which  the  prisoners  were  deprived  of  liberty."  This  action 
was  begun  by  the  filing  of  a  bill  of  equity  in  the  name  of 
the  United  States  under  the  direction  of  Attorney-General 
Olney.  As  we  have  seen,  Olney  had  been  a  railroad  director.0 
The  bill  was  unsigned  by  anyone,  and  "  has  attached  to  it  an 
affidavit  of  George  I.  Allen,  an  unknown  person,  having, 
so  far  as  the  record  shows,  no  connection  with  the  case, 
stating  that  he  has  read  the  bill  and  '  believes  the  statements 
contained  therein  are  true.'  "  Was  there  anything  unlawful, 
Trumbull  asked,  in  the  American  Railway  Union  calling  upon 

c  And,  according  to  a  list  of  the  ten  largest  security  holders  of  the 
leading  railroads  in  the  United  States  given  out  by  the  Interstate  Com- 
merce Commission,  January  15,  1009,  Richard  Olney,  G.  F.  Richardson 
and  B.  P.  Cheney  of  Boston  were  trustees  for  204.700  shares  of  pre- 
ferred stock  of  the  St.  Louis  and  San  Francisco  Railroad. 


624  HISTORY   OF   THE   SUPREME   COURT 

its  members  to  quit  work?  If  not,  then  Debs  and  associates 
were  not  engaged  in  any  unlawful  combination  or  conspiracy. 
The  boycott  of  the  Pullman  cars  was,  as  the  bill  clearly 
showed,  not  to  obstruct  commerce,  but  for  an  entirely  dif- 
ferent purpose.  Refusing  to  work,  Trumbull  went  on,  was 
no  crime.  Although  such  an  action  might  incidentally  delay 
the  mails  or  interfere  with  interstate  commerce,  it  was  a 
lawful  act  and  no  offense.  The  act  of  Congress  to  protect 
trade  and  commerce  against  unlawful  restraints  and  monopoly 
did  not  apply  to  the  case  stated  in  the  bill;  if  so,  Trumbull 
said,  it  was  unconstitutional. 

Justice  Brewer  delivered  the  decision  of  an  unanimous 
Court.  The  remarkable  sight, was  now  presented  of  this 
"  great  and  honorable  court  "  deciding  the  case  upon  a  point 
in  no  way  involved,  thus  violating  one  of  the  most  funda- 
mental principles  of  law.  Brewer  denied  Debs'  petition  upon 
the  ground  that  he  and  associates  had  obstructed  interstate 
commerce  traffic  by  derailing  and  wrecking  engines  and  trains, 
and  assaulting  and  disabling  railroad  employes.  If  this  were 
true,  why  was  it  that  no  such  criminal  action  had  ever  been 
brought  against  Debs?  And  if  it  were  true,  Debs  could  have 
been  convicted  and  sentenced  to  prison  for  a  long  term, 
instead  of  getting  the  sentence  of  six  months  in  jail  for  con- 
tempt of  court  that  the  Supreme  Court  of  the  United  States 
on  May  27,  1895,  tnus  affirmed.  In  the  very  act  of  sending 
D^ebs  to  jail  the  Supreme  Court  established  (as  an  entering 
wedge)  the  ominous  precedent  and  principle  that  the  Federal 
anti-trust  law  applied  to  combinations  of  wage  workers.7 

7  In  re  Debs,  158  U.  S.  Reports,  564.  While  Attorney-General  Olney 
was  thus  pressing  the  case  against  Debs  and  having  the  anti-trust  act 
applied  to  labor  unions,  he  was  allowing  an  important  case  against  the 
cash-register  combination  to  go  by  default.  The  important  allegations 
of  the  Government  against  this  trust  were  clearly  sustained.  Olney, 
into  whose  control  the  prosecution  of  the  case  had  come  from  his 
predecessor,  allowed  the  indictment  to  lapse,  giving  the  remarkable 
and  specious  reason  that  the  complaining  witnesses  had  entered  into 
the  combination  of  the  defendants!  —  See,  U.  S.  vs.  Patterson  et  al., 
55  Federal  Reporter ;  605  and  59  Ibid.,  208. 


UNDER    CHIEF   JUSTICE    FULLER  625 

Of  the  Justices  sanctioning  this  decision,  these  particulars, 
repeated  here,  are  pertinent  as  indicating  class  bias : 

Chief  Justice  Fuller  had  been  counsel  for  Marshall  Field, 
•chief  owner  of  the  Pullman  works,  and  he  had  represented  the 
Chicago,  Burlington  and  Quincy  Railroad  and  other  railroad 
capitalists  and  interests.8 

Justice  Field  had  been  placed  on  the  Supreme  Court  Bench 
by  the  Central  Pacific  and  the  Southern  Pacific  Railroad  in- 
terests. 

Field's  nephew,  Brewer,  had  been  sponsored  by  the  same 
and  allied  interests. 

Justice  Gray  was  a  capitalist  with  varied  interests  and  con- 
nections. 

Justice  Shiras  had  represented  the  Baltimore  and  Ohio  Rail- 
road system. 

Justice  Brown  had  represented  the  Vanderbilt  and  other 
railroads  as  counsel  in  Michigan,  and  was  a  corporation  stock- 
holder. 

Justice  White  was  a  rich  Louisiana  sugar  planter. 

Touching  unanimous  decisions,  it  will  be  desirable  to  insert 
a  few  words  here  of  a  decision  of  the  Supreme  Court  of  the 
United  States  which  gave  Justice  Gray  another  sizeable  for- 
tune. 

Justice  Gray,  "  Next  of  Kin." 

His  grandfather,  William  Gray,  had  been  one  of  the  largest 
shipowners  in  New  England,  and  was  one  of  those  asserting 
that  his  interests  had  suffered  from  French  spoliations  after 
the  French  Revolution.  For  more  than  eighty  years  attempts 
were  made  to  lobby  through  Congress  acts  to  indemnify  these 
claimants,  but  the  claims  were  regarded  as  nothing  more  or 
less  than  tenacious  efforts  to  raid  the  Treasury.  Finally, 

8  Noted  on  the  record  in  Case  of  Chicago,  Burlington  and  Quincy 
Railroad  vs.  Chicago,  166  U.  S.  Reports,  227  (October,  1896)  :  "  The 
Chief  Justice  took  no  part  in  the  consideration  or  determination  of  these 
cases  "  (p.  263). 


626  HISTORY   OF   THE    SUPREME   COURT 

in  1885,  Congress  was  induced  to  pass  an  act  authorizing  the 
referring  of  certain  claims  to  the  Court  of  Claims.  One  of 
these  was  the  Gray  claim. 

The  question,  however,  was:  Who  should  get  the  money, 
appropriated  as  indemnity  for  spoliations  of  William  Gray's 
ships?  That  William  Gray  had  gone  bankrupt  was  unde- 
niable. The  Massachusetts  Supreme  Court  had  decided  that 
the  indemnity  funds  which  had  beenj>aid  to  Codman,  admin- 
istrator of  the  Gray  estate,  should  "  be  paid  over  as  assets 
to  the  estate  of  William  Gray,  the  elder,  and^as  passing  under 
his  will  to  the  residuary  legatees  named  therein." 9  These 
legatees  were  charitable  and  other  societies. 

But  the  Supreme  Court  of  the  United  States  upset  this 
decision.  In  delivering  the  unanimous  decision  of  this  Court, 
Chief  Justice  Fuller  held  that  the  act  of  Congress  of  March 
3,  1891,  should  be  construed  to  read  not  that  the  payments 
should  go  to  the  creditors,  legatees,  assignees  or  strangers  to 
the  blood,  but  that  they  should  be  turned  over  to  the  next 
of  kin.  And  by  "  next  of  kin,"  Fuller  explained,  was  in- 
tended "  next  of  kin  "  at  the  time  the  act  was  passed. 

The  "  next  of  kin "  in  this  case  was  Fuller's  colleague, 
Justice  Horace  Gray,  who  thereby  was  enabled  to  add  a  goodly 
sum  to  his  bank  account.10 

A  new  Justice  to  succeed  Jackson  now  came  on  the  Supreme 
Court  Bench  in  the  person  of  Rufus  W.  Peckham.  President 
Cleveland  had  at  first  successively  nominated  William  B. 
Hornblower  and  Wheeler  H.  Peckham,  both  corporation 
attorneys.11  But  they  belonged  to  a  political  faction  in  New 

9  159  Mass.  Reports,  427. 

10  See,  Case  of  Brooks  vs.  Codman,  and  Foote  vs.  Women's  Board  of 
Missions,   162  U.  S.  Reports,  439.     "  Mr.  Justice  Gray  did  not  sit  in 
these  cases  or  take  any  part  in  their  decision." —  P.  466. 

11  Hornblower  had  represented  the  Pacific  Railroad  of  Missouri  (IV 
Supreme  Court  Reporter,  584),  the  New  York  Life  Ins.  Co.,  and  other 
corporations.     Wheeler  H.  Peckham  was  also  a  well-known  corporation 
attorney ;  he  was  a  director  of  the  Buffalo,  Rochester  and   Pittsburg 
Railway,  and  was  interested  in  other  corporations.     See  later. 


UNDER    CHIEF   JUSTICE    FULLER  627 

to 

York  inimical  to  United  States  Senator  David  B.  Hill  who 
now  in  retaliation  fought  down  their  nominations  with  suc- 
cess. Cleveland  then  compromised  on  Rufus  W.  Peckham, 
a  brother  of  Wheeler  H.  Peckham. 


Justice  Peckham's  Career. 

Rufus  W.  Peckham  was  a  son  of  a  jurist  of  the  same  name 
who  had  been  a  judge  of  the  New  York  Court  of  Appeals 
and  had  died  in  1873.  The  junior  Rufus,  in  1866,  married  a 
daughter  of  D.  H.  Arnold,  President  of  the  Mercantile  Bank, 
'of  New  York  City.  He  became  a  member  of  the  law  firm 
of  Peckham  and  Tremaine  (later  Peckham  and  Rosendale) 
in  Albany;  was  elected  District  Attorney  of  Albany  County 
in  1869,  and  subsequently  Albany's  Corporation  Counsel. 
From  thence  on  his  private  practice  was  large  and  lucrative. 

We  find  Rufus  W.  Peckham  as  one  of  the  counsel,  in  1872, 
for  the  notorious  Tammany  judge,  John  H.  McCunn,  of  the 
Superior  Court,  New  York  City.12  The  Bar  Association  pre- 
ferred charges  of  corrupt  conduct  against  McCunn ; 13  Peck- 
ham  vigorously  defended  him  at  the  trial,  but  McCunn  was 
found  guilty  on  eight  specifications,  impeached  and  removed 
from  office.14  Six  years  later,  Peckham  appeared  as  counsel 
for  John  F.  Smyth,  Superintendent  of  the  Insurance  Depart- 
ment of  New  York  State.  Smyth  was  charged  with  mal- 
feasance and  corruption.  The  influence  of  the  great  insur- 
ance corporations  was  concentrated  upon  bringing  about  his 

12  For  Peckham's  pleas  and  arguments  for  McCunn  at  this  trial,  see, 
"  Proceedings   in  The    Senate   on   The   Investigation  of   The   Charges 
Preferred  Against  John  H.  McCunn,"  etc.,  Albany,  1874:  pp.  80,  100, 
102,  no.  134,  142,  etc. 

13  It  is  curious  to  note  that  one  of  the  three  members  of  the  acting 
committee  of  the  Bar  Association  was  John  E.  Parsons,  the  very  same 
who  has  long  been  chief  counsel  for,  and  a  director  of,  the  Sugar  Trust, 
the  enormous  thefts  of  which  in  defrauding  the  Government  of  import 
duties,  were  exposed  in  1909-1910. 

14  See,  "  Proceedings  In  The  Senate  On  The  Investigation  Of  The 
Charges  Preferred  Against  John  H.  McCunn,"  etc.,  pp.  604-605. 


628  HISTORY    OF    THE    SUPREME   COURT 

« 

acquittal;  and  by  a  vote  of  19  to  12  (thus  lacking  the  con- 
stitutional two-thirds  majority)  the  New  York  Senate  de- 
cided not  to  remove  him  from  office.15  In  1883,  Peckham 
was  counsel  for  Lorenz  B.  Sessions,  charged  with  bribery, 
and  in  the  course  of  his  argument  Peckham  pleaded  that 
"  an  acquittal  would  hurt  no  one,  but  the  question  of  con- 
viction was  serious,  for  if  a  conviction  was  had,  the  defendant 
would  be  sent  to  prison  for  a  term  of  years."  Much  com- 
ment was  made  upon  Peckham's  peculiar  views  on  the  offense 
of  bribery,  in  his  arguing  that  bribery  was  a  secret  transac- 
tion, and  that  the  informer  was  a  "  squealer." 

As  counsel  or  trustee  or  both  for  many  banking,  insurance 
and  other  corporations  Peckham's  practice  and  activities  were 
extensive.  His  investments  were  considerable.  In  1884  he 
was  elected  a  trustee  of  the  Mutual  Life  Insurance  Company 
of  New  York,  and  continued  in  that  capacity  for  twenty-one 
years.  His  associates  on  the  board  of  trustees  of  that  com- 
pany at  various  times  comprised  many  of  the  most  powerful 
capitalists  in  the  world ;  George  F.  Baker,  Cornelius  Vander- 
bilt,  Henry  H.  Rogers,  William  Rockefeller,  James  Speyer 
and  many  others  of  lesser,  but  still  enormous,  power.16 


His  Magnate  Associates. 

Baker  was  president  or  vice-president  or  director  of  more 
than  thirty  corporations;  he  was  the  President  of  the  First 
National  Bank  and  a  director  in  other  banks ;  first  vice-presi- 
dent and  director  of  the  Central  Railroad  of  New  Jersey, 
director  of  the  Delaware,  Lackawanna  and  Western  Railroad, 

15  See,  "  Testimony  and  the  Arguments  of  Counsel  Before  The  Sen- 
ate on  Charges  Against  John  F.  Smyth,  Superintendent  of  the  Insurance 
Department,  Albany,  1878  " :  pp.  5,  7,  40,  etc.     Peckham's  final  argument 
for  Smyth  is  to  be  found  on  pp.  365-384,  and  the  vote  on  the  question 
of  Smyth's  removal  on  page  518. 

16  See,  "  The  Insurance  Year  Book  "  for  1905 :  p.  175.     Other  trustees 
were  Stuyvesant   Fish,  Augustus  Julliard,   George   G.   Haven,   Charles 
Lanier,  Elbridge  T.  Gerry,  Elihu  Root,  Adrian  Iselin,  Jr.,  etc.,  etc. 


UNDER   CHIEF   JUSTICE   FULLER  629 

of  the  Northern  Pacific  Railway,  of  the  Lehigh  and  Hudson 
Railroad,  of  the  Consolidated  Gas  Company,  trustee  of  the 
Southern  Railway  Company,  etc.,  etc.17 

The  Standard  Oil  Company,  in  which  Rogers  and  Rocke- 
feller were  among  the  few  dominating  magnates,  then  largely 
or  wholly  controlled,  in  league  with  the  Goulds,  twelve  rail- 
road systems  with  a  total  mileage  of  28,157,  and  a  total  capi- 
talization of  $1,368,877,540.  These  systems  included  the 
Missouri  Pacific,  the  Texas  Pacific,  the  Wabash,  the  St. 
Louis  Southwestern,  the  Denver  and  Rio  Grande,  the  Wheel-, 
ing  and  Lake  Erie,  the  Western  Maryland,  the  Chicago,  Mil- 
waukee and  St.  Paul,  the  Colorado  and  Southern,  and  other 
railroad  lines.18 

The  Vanderbilts  controlled  about  eleven  railroad  systems 
—  21,888  miles  of  railroad  in  all  —  capitalized  at  more  than 
a  billion  dollars,  and  they  held  formidable  interests  in  other 
railroads.10 

The  J.  Pierpont  Morgan  group,  also  represented  on  the 
board  of  trustees  of  the  Mutual  Life  Insurance  Company,  was 
allied  with  James  J.  Hill  in  the  control  of  47,206  miles  of  rail- 
road lines,  capitalized  at  more  than  two  billion  dollars.'0 
Other  groups  of  railroad  capitalists  were  likewise  repre- 
sented. 

But  the  railroad  ownings  of  Peckham's  fellow  trustees 
were  only  a  fragment  of  their  entire  interests.  Rogers  was 
an  officer  or  director  of  twenty-five  large  corporations  in- 
cluding railroads,  great  copper  companies,  gas  corporations 
and  others.21  Fish  was  an  officer  or  director  of  twelve  dif- 
ferent corporations ; 22  Julliard  of  twenty-one ; 23  William 

17  "  Directory  of  Directors  "  for  1899 :  pp.  22-23. 

18  Moody's    "  The    Truth    About    The    Trusts,"    "  Gould-Rockefeller 
Group  " :  pp.  435-436. 

18  Ibid.,  432. 
20 1 bid.,  434. 

21  "Directory  of  Directors  In  The  City  of  N.  Y.,"  for  1904:  795-796. 

22  Ibid.,  307. 
**Ibid.,  495-496. 


630  HISTORY   OF   THE   SUPREME    COURT 

Rockefeller  of  thirty-one ; 24  Iselin  of  twenty-seven ; 25  Cor- 
nelius Vanderbilt  of  twenty ; 2G  Speyer  of  seventeen ; 2T 
Lanier  of  eighteen ; 28  Haven  of  thirty-two ; 23  and  so  on. 
The  ramifications  of  the  power  of  these  men,  owning  and  con- 
trolling, as  they  did,  billions  of  dollars  of  the  country's  re- 
sources, were  stupendous. 

Corruption  by  the  Mutual  Life  Insurance   Company. 

Much  of  the  immense  surplus  of  the  life  insurance  compa- 
nies was  invested,  by  vote  of  the  trustees,  in  the  great  out- 
pourings of  watered  railroad  and  industrial  stocks.  The 
Mutual  Life  Insurance  Company  alone  held,  in  1904,  assets 
of  $440,978,371  ;  it  had  liabilities  of  $366,620,553,  and  its 
surplus  was  $74,357,818.  The  revelations  before  the  New 
York  Legislative  Insurance  Committee,  in  1905,  are  perhaps 
tolerably  well  remembered ;  how  syndicates  of  "  insiders " 
made  vast  profits  by  dumping  watered  stock,  which  they  as 
directors  of  railroads  and  other  corporations  had  issued,  upon 
the  insurance  companies,  and  how  for  decades  corruption 
funds  had  been  distributed  in  every  legislative  center  to  insure 
the  passage  of  favorable  special  legislation  and  the  defeat  of 
laws  hostile  to  the  insurance  company  looters. 

"  The  testimony,"  reported  the  legislative  committee, 
"  taken  by  this  committee  makes  it  clear  that  the  large  insur- 
ance companies  systematically  attempted  to  control  legislation 
in  this  [New  York]  and  other  States,  which  could  affect 
their  interests  directly  or  indirectly.  The  three  companies 
divided  the  country,  outside  of  New  York,  and  a  few  other 
States,  so  as  to  avoid  a  waste  of  effort,  each  looking  after  its 
chosen  district  and  bearing  its  appropriate  part  of  the  total 
expenses."  30 

24  Ibid.,  792-793.  ™Ibid.,  967-968.  zs  Ibid.,  536-537. 

25  Ibid.,  472-473.  27  Ibid.,  885-886.  29  Ibid.,  409-410. 

30 "  Report  of  the  [New  York]  Legislative  Committee,  1906,  Vol. 
X:23. 


UNDER    CHIEF   JUSTICE    FULLER  63! 

One  of  these  three  companies  was  the  Mutual  Life  Insur- 
ance Company.  At  Albany  it  maintained  a  sumptuously  ap- 
pointed house,  jocosely  styled  "  the  House  of  Mirth,"  where 
Andrew  C.  Fields,  its  regular  lobbyist,  manipulated  legisla- 
tion and  distributed  corruption  funds.  "  At  times,"  reported 
the  Committee,  "  members  of  the  Senate  while  serving  on  its 
Insurance  Committee,  lived  at  this  house  in  Albany  which  the 
Mutual  maintained." 31  The  corruption  funds  were  cloaked 
under  the  guise  of  "  legal  expenses " ;  from  1898  to  1904, 
the  Mutual  Life  Insurance  Company  thus  corruptly  expended 
more  than  $2,ooo,ooo.32  Vast  thefts  of  the  policy  holders' 
money  were  committed  in  the  Mutual's  "  Supply  Department  " 
which  was  under  Fields'  charge.33  "  Large  sums,"  the  Com- 
mittee further  reported,  "  have  been  expended  in  the  attempt 
to  influence  public  opinion  through  the  press  by  the  insertion 
of  so-called  '  reading  notices ' ;  that  is  to  say,  by  disguised 
advertising  and  by  payments  to  newspaper  correspondents 
and  news  writers  for  presumably  similar  services."  34 

Manipulation   of   Elections. 

Of  the  Mutual  Life  Insurance  Company,  the  Committee  still 
further  reported  that  "  it  is  a  purely  mutual  company,  and  in 
theory  is  governed  exclusively  by  its  policy  holders.  .  .  . 
In  practice  the  policy  holders  have  had  little  concern  with  the 
selection  of  trustees  or  with  the  management  of  the  Com- 
pany. Notices  of  election  have  been  published  in  New  York 
City  papers  —  but  have  not  been  mailed  to  policy  holders. 
There  are  probably  between  400,000  and  500,000  policy 

31  Ibid.     See  full  details,  pp.  17-22. 

3- Ibid.,   16.     The   "legal   expenses"   of  the   Mutual    Life   Insurance 
Co.   for  a  series  of  years  were:     1898,  $266,403.95;   1899,  $286,048.74; 
•1900,  $304,756.85;  IQOI,  $243,516.78;  1902,  $275,989.64;  1903,  $347,254-95; 
1904,  $364,254.95. 

33 "Report  of  the  [New  York]  Legislative  Committee,"  etc.,  Vol.  X: 
P-  25. 

26. 


632  HISTORY   OF   THE   SUPREME   COURT 

holders  entitled  to  votes  for  trustees,  but  for  a  long  period 
of  years  not  more  than  200  votes  have  been  cast  at  any  elec- 
tion. The  voters  who  vote  personally  have  generally  been 
employes  of  the  company  or  of  subsidiary  companies.  The 
policy  holders  are  entitled  to  vote  by  proxy,  but  as  a  rule 
proxies  have  not  been  used.  In  order  to  secure  the  con- 
tinuity of  the  management  and  to  guard  against  an  uprising 
of  the  policy  holders,  proxies  to  the  extent  of  20,000  or  more 
were  held  by  President  Richard  A.  McCurdy  and  Vice-Presi- 
dent Richard  Grannis,  having  been  obtained,  under  suitable 
instructions,  by  the  local  managers.  .  .  .  The  result  has 
been  an  autocracy  maintained  almost  without  challenge. 
Whatever  efforts  have  been  directed  against  it  have  proved 
abortive."  35 

Peckham  Did  Not  Protest. 

Peckham,  as  we  have  said,  was  a  trustee  of  the  Mutual  Life 
Insurance  Company  for  twenty-one  years,  beginning  in  1884. 
He  had  been  on  the  Bench  of  the  Supreme  Court  of  the 
United  States  for  nearly  ten  of  the  years  covered  by  this 
report. 

Was  he  unfamiliar  with  this  colossal  corruption  and  these 
illegal  methods?  If  he  were,  then  he  was  unfit  to  be  a  trustee 
of  a  company  of  the  administration  of  which  he  was  ignorant. 

This  lack  of  knowledge  might  be  assumed  of  an  official  who 
served  but  a  short  time ;  but  Peckham  had  been  a  trustee  con- 
tinuously for  more  than  two  decades.  Moreover,  as  we  have 
seen,  Peckham,  back  in  1878,  had  defended  State  Insurance 
Superintendent  Smyth,  charged  with  corruption ;  the  details 
in  that  long  trial  were  such  that  they  could  hardly  have  left 
anyone  innocent  of  the  methods  of  the  life  insurance  com- 
panies. We  have  also  seen  how  Peckham  had  defended  the 
corrupt  Judge  McCunn,  and  how  in  the  Sessions  case  he  had* 
slighted  the  gravity  of  the  offense  of  bribery.  Finally,  ia 

SB"  Report  of  [N,  Y.]  Legislative  Committee,"  Vol.  X:  9-10. 


UNDER    CHIEF   JUSTICE   FULLER  633 

view  of  the  disclosures  concerning  the  autocratic  methods  by 
which  a  few  men  manipulated  the  choice  and  election  of 
trustees,  was  it  possible  that  he  would  have  been  kept  on  the 
board  of  the  Mutual's  trustees  if  he  had  not  been  passive  or 
subservient  ? 

During  the  twenty-one  years  as  trustee,  Peckham  did  not 
once  protest.  On  the  contrary,  he  retained  his  office  and 
associations.  Not  until  during  the  height  of  the  disclosures 
before  the  Legislative  Insurance  Committee,  when  the  New 
York  World  addressed  some  sharp  editorial  letters  to  him, 
did  he  resign;  and  this  he  did,  in  November,  1905,  with  many 
sanctimonious  expressions  of  "  righteous  indignation."  Dur- 
ing the  very  time  that  he  was  serving  as  a  trustee  of  the 
Mutual  Life  Insurance  Company  he  was,  as  a  Justice  of  the 
Supreme  Court  of  the  United  States,  handing  down  decisions 
declaring  certain  anti-corporation  laws  unconstitutional  — 
decisions  of  incalculable  value  to  his  capitalist  associates.30 
It  was  this  same  Peckham,  blind  (let  us  assume)  to  the 
prodigious  corruption  of  the  corporation  of  which  he  was  a 
trustee,  who  saw  and  declared  that  a  law  establishing  a  ten- 
hour  work  day  for  hard-driven  bakeshop  workers  was  un- 
constitutional. 

Peckham's  appointment  to  the  Supreme  Court  of  the  United 
States  represented  another  significant  stage  of  economic  de- 
velopment. His  associates  on  the  Mutual  Life  Insurance 
Company,  especially  during  the  latter  part  of  his  trusteeship, 
were  not  exclusively  railroad  magnates,  factory  owners  or 
banking  grandees.  Their  elaborate  interests  embraced  rail- 
roads, banking  syndicates,  street  railway  systems,  electric  light 
plants,  coal  mines,  copper,  gold  and  silver  mines,  realty  com- 
panies, and  industrial  trusts  of  all  descriptions.  In  those 
men,  or  some  of  them,  was  concentrated  the  control  of  some 
of  the  mightiest  trusts  which,  in  turn,  controlled  a  host  of 

36  See  later. 


634  HISTORY   OF  THE   SUPREME   COURT 

subsidiary  trusts.     They  were  the  arch-types  of  the  newer 
era  of  trusts  and  the  sway  of  trusts. 

Briefly,  we  shall  now  give  a  succession  of  decisions  of  the 
Supreme  Court  of  the  United  States,  the  first  in  the  list  of 
which  was  given  before  Peckham's  appointment. 


The  Sugar  Trust  Decision. 

On  January  21,  1895,  the  decision  in  the  action  of  the 
Government  against  the  Sugar  Trust  was  handed  down. 
This  trust  controlled  98  per  cent,  of  the  output  of  sugar, 
yet  the  Supreme  Court  decided  that  it  was  not  a  combination 
in  restraint  of  trade  under  the  Sherman  anti-trust  act.37 

This  decision  demonstrated  that  the  Supreme  Court  was 
pro-trust,  and  could  be  surely  depended  upon  to  validate  any 
trust  in  maintaining  its  monopoly. . 

From  the  point  of  view  of  industrial  progress,  there  was 
nothing  in  this  decision  intrinsically  open  to  criticism ;  the 
trust  was  a  superior  institution  to  the  archaic,  passing  one 
of  unrestricted  competition,  and  was  bound  to  prevail  by 
force  of  its  economic  superiority.  But  the  fact  to  be  noted 
is  that,  despite  drastic  legislation  against  trusts,  the  Supreme 
Court  could  or  would  not  see  that  it  violated  the  laws.  In 
the  Debs  case  a  little  later  it  microscopically  searched  laws 
to  find  a  ground  on  which  to  commit  Debs  to  jail,  and  had 
to  invent  a  fictitious  point  in  order  to  do  it.  In  the  one 

3T  Case  of  U.  S.  vs.  E.  C.  Knight  Company,  156  U.  S.  Reports,  i. 
Practically,  this  decision  legalized  the  operations  of  the  trust  and  ab- 
solved its  powerful  heads  from  criminal  prosecution.  The  all-wise 
Supreme  Court  of  the  United  States  failed  to  discover  that  a  trust  was 
a  trust.  But  the  Federal  Grand  Jury,  in  July,  1909,  seems  to  have 
keener  eyesight.  It  indicted  John  E.  Parsons,  originator  of  the  trust 
idea  and  formerly  general  counsel,  and  leading  director  of  the  American 
Sugar  Refining  Company.  Thomas,  vice-president,  Donner,  Frazier 
and  other  officials  of  the  trust  were  also  indicted.  For  two  years  Par- 
sons and  associates  contested  the  indictments,  but  the  Federal  Circuit 
Court  in  New  York  recently  decided  that  they  must  stand  criminal  trial 
for  alleged  conspiracy  to  restrain  commerce. 


UNDER    CHIEF   JUSTICE   FULLER  635 

case,  the  Supreme  Court  of  the  United  States  refused  to  en- 
force the  clearest  and  most  unmistakable  laws  against  power- 
ful capitalists;  in  the  other,  it  manufactured  law  in  order 
to  strike  a  blow  at  the  workers  by  jailing  one  of  its  most 
active,  sincere  and  able  leaders,  thus  setting  a  precedent  for 
the  future  imprisonment  of  other  labor  leaders. 


Long-Continuing  Sugar  Frauds. 

Exempted  from  hostile  decrees,  the  Sugar  Trust,  as  later 
developments  proved,  set  out  vigorously  on  an  even  more 
oppressive  process  of  illegally  undermining  remaining  com- 
petitors, and  at  the  same  time  defrauded  the  Government  of 
vast  sums  by  the  underweighing  of  imported  sugar  material. 

The  testimony  recently  given  —  May  and  June,  1911  — 
before  the  Stanley  Congressional  Investigating  Committee 
revealed  that  the  Sugar  Trust  had  been  a  trust  since  1887 
when,  as  Edwin  F.  Atkins  of  Boston,  acting  president  of 
the  trust  testified,  seventeen  sugar-refining  companies  had 
been  organized  into  a  trust  by  H.  O.  Havemeyer.  Atkins 
admitted,  too,  that  the  trust  had,  in  violation  of  law,  con- 
sistently received  rebates  from  the  railroads.  Of  the  mass 
of  corroborating  testimony  we  shall  not  reproduce  more  here. 
And  as  to  the  methods  used  by  the  Sugar  Trust  in  trying  to 
rid  itself  of  a  dangerous  competitor  like  Spreckels,  one  of 
many  facts  testified  to  was  that  dead  rats  were  surreptitiously 
placed  in  barrels  of  sugar  packed  in  Spreckels'  factory. 

The  import  frauds  of  the  Sugar  Trust  were  so  gigantic 
that  when  they  were  discovered  in  1908-1909,  that  trust  has- 
tened to  pay  over  in  April,  1909,  a  settlement  of  about 
$2,000,000  to  the  Government,  hoping  to  avert  criminal  pro- 
ceedings. It  was  estimated  that  the  total  sums  of  which 
the  trust  had  defrauded  the  Government  reached  tens  of 
millions  of  dollars.  One  of  the  directors  of  the  Sugar  Trust 
during  this  period  was  John  E.  Parsons  who  made  the  argu- 


636  HISTORY   OF   THE    SUPREME    COURT 

ment  for  the  trust  before  the  Supreme  Court  of  the  United 
States,  in  1894.  He  and  all  the  other  responsible  magnates 
escaped  criminal  punishment;  they  were  indicted  in  1909,  it 
is  true,  yet  not  for  customs  frauds,  but  for  violations  of  the 
anti-trust  act.  The  only  punitive  action  enforced  was  against 
a  few  trust  employes,  and  some  Government  weighers  who 
had  been  bribed.  They  were  sent  to  prison. 


A  Series  of  Decisions. 

To  return  to  the  succession  of  Supreme  Court  decisions : 

On  March  30,  1896,  that  Court  nullified  the  grant  of  power 
to  the  Interstate  Commerce  Commission  to  settle  maximum 
rates  for  railroad  transportation.38 

On  the  same  day  the  Supreme  Court  handed  down  a  deci- 
sion practically  allowing  interstate  railroads  license  to  charge 
two  or  three  times  as  much  for  carrying  American,  as  for 
foreign,  freight,  between  the  same  points  and  conceivably  on 
the  same  car.30 

On  the  other  hand,  the  Supreme  Court  of  the  United 
States,  in  the  Arago  case,  so  construed  the  thirteenth  Amend- 
ment to  the  Constitution  as  to  make  it  the  basis  for  a  new 
form  of  involuntary  servitude  for  all  workers,  white,  black, 
red  or  yellow. 

Robertson,  Olsen,  Bradley  and  Hansen,  seamen  who  had 
shipped  by  contract  in  the  bark  Arago,  decided  because  of 
intolerable  conditions,  to  quit  work  when  the  vessel  reached 
Astoria,  Oregon.  They  were  subsequently  arrested  at  San 
Francisco,  and  were  charged  under  Rev.  Statute  4596,  with 
refusing  to  work.  When  their  petition  for  a  writ  of  habeas 
corpus  came  before  the  Supreme  Court  of  the  United  States, 

38  Cincinnati,  New  Orleans  and  Texas  Pacific  Railway  vs.  I.  C.  C, 
and  I.  C.  C.  vs  Cin.,  N.  O.  and  Texas  Pacific  Railway,  162  U.  S.  Reports, 
184.     Justice  Shiras  wrote  the  Court's  unanimous  decision. 

39  Texas  and  Pacific  Railway  vs.  I.  C.  C.,   162  U.  S.   Reports,   197. 
Shiras  also  wrote  this  decision;  Harlan  and  Brown  dissented. 


UNDER    CHIEF   JUSTICE    FULLER  637 

that  Court  held  that  the  statute  in  question  did  not  conflict 
with  the  Constitutional  amendment  forbidding  slavery  and 
involuntary  servitude.  That  provision,  the  Court  said,  was 
never  intended  to  apply  to  such  contracts ;  the  contract  of  a 
sailor  involved,  to  a  certain  extent,  the  surrender  of  his  per- 
sonal liberty  during  the  life  of  the  contract.40 

It  can  easily  be  seen  how  such  a  precedent  can  be  stretched 
a  little  further  to  cover  workers  of  all  kinds  as  well  as  labor 
unions  signing  contracts.  Whatever  oppression  and  injus- 
tice are  heaped  upon  them,  workers  can  be  held  in  servitude 
to  the  letter  of  their  contract,  while  if  the  capitalist  decides 
to  throw  his  workers  out  of  jobs,  he  can  plead  various  rea- 
sons for  justification,  and  no  contract  is  enforced  against  him. 

More  decisions  favorable  to  railroad  corporations  followed. 
On  May  24,  1897,  the  Supreme  Court  handed  down  a  deci- 
sion reasserting  and  even  amplifying  some  of  its  previous 
anti-interstate  commerce  decisions.41 

It  repeated  the  performance  in  an  anti-interstate  commerce 
decision,  on  November  8,  1897. 

On  March  7,  1898,  the  Supreme  Court's  decision  in  the 
Nebraska  maximum  rate  case  was  made  public.  This  deci- 
sion was  another  step  in  the  process  of  stripping  the  Inter- 
state Commerce  Commission  of  the  power  given  it  by  Con- 
gress to  make  interstate  railroad  rates  reasonable.  The  effect 
of  the  decision  was  to  nullify  legislation  in  many  States,  and 
allow  the  railroads  to  charge  what  rates  they  pleased  in  both 
intrastate  and  interstate  transportation.42 

In   that    same   year  the    Supreme   Court,   on    October   24, 

40  Case  of  Robertson  vs.  Baldwin,  165  U.  S.  Reports,  275.     Brown  de- 
livered the  Court's  decision  ;  Harlan  dissented. 

41  I.  C.  C.'vs.  Cincinnati,  New  Orleans  and  Texas  Pacific  Railway  Co., 
167  U.  S.  Reports,  479.     Brewer  delivered  this  decision.     In  the  other 
case,  I.  C.  C.  vs.  Alabama  Midland  Railway  Co.    (168  U.  S.  Reports, 
144),  Shiras  wrote  the  decision.     Harlan  dissented  in  both  cases. 

42  Smyth  vs.  Ames,  169  U.  S.  Reports,  466.     Harlan  wrote  the  Court's 
unanimous  decision.     "  The  Chief  Justice  took  no  part  in  the  considera- 
tion or  decision  of  these  cases"  (p.  550). 


638  HISTORY   OF   THE    SUPREME   COURT 

decided  the  live-stock  cases,  both  companion  cases  to  the 
Sugar  Trust  cases.  Although  each  of  these  live-stock  com- 
binations was  flagrantly  violating  the  laws  in  restraint  of 
interstate  commerce,  a  bill  of  immunity  was  extended  to  both 
by  the  Supreme  Court.43 

The  decision  in  the  Joint  Traffic  Association  case  was 
handed  down  on  the  same  day.  The  unsophisticated  accepted 
this  decision  as  one  of  an  anti-trust  nature,  but  the  well-in- 
formed believed  that  this  association,  representing  thirty -one 
railroads,  wanted  a  decree  for  its  formal  dissolution,  so  as 
to  be  able  to  plead  arguments  for  the  necessity  of  legislation 
by  Congress  virtually  allowing  combination.  Ostensibly  de- 
fendants, they  in  reality  secured  a  much-desired  decision  which 
they  were  making  great  pretenses  of  contesting.44 

The  decision  in  the  Addyston  Pipe  and  Steel  Company  case 
was  hailed  as  one  adverse  to  the  trusts,  but  this  company 
was  entirely  too  small  to  be  ranked  among  the  great  trusts 
and  it  was  believed  that  the  suit  for  its  effacement  was  secretly 
instigated  by  great  capitalists  objecting  to  its  competition  or 
scheming  to  annihilate  it.45 

One  of  the  Supreme  Court's  decisions  of  immense  value  to 
the  land-grant  railroads  was  that  of  May  31,  1898,  declaring 
that  the  land  grant  of  the  Northern  Pacific  Railroad,  under 
the  act  of  July  2,  1864,  extended  two  hundred  feet  on  each 
side  of  the  track  along  the  entire  right  of  way.  The  railroad 
company  did  not  bring  ejectment  proceedings  until  1877,  by 
which  time  cities  and  towns  had  been  built  along  the  road ; 
and  not  until  after  these  sites  had  become  of  great  value  did 
the  company  think  of  asserting  title  to  these  valuable 
stretches  of  real  estate  under  its  claim  of  right  of  way.  This 

43  Hopkins  vs.  U.  S.,  171  U.  S.  Reports,  578,  and  Anderson  vs.  U.  S., 
Ibid.,  604.     Peckham  delivered  the  court's  opinion ;  Harlan  dissented. 

44  U.  S.  vs.  Joint  Traffic  Association,  171  U.  S.  Reports,  505.     Peck- 
ham  wrote  this  decision  also. 

4r>  Addyston  Pipe  and  Steel  Company  vs.  U.  S.,  175  U.  S.  Reports,  211. 
This  decision  was  also  written  by  Peckham. 


UNDER   CHIEF   JUSTICE   FULLER  639 

decision,  of  course,  presented  the  company  with  property  worth 
vast  sums.40 

These  are  a  few  typical  decisions  of  the  Supreme  Court  of 
the  United  States  during  this  period.  The  infirmities  of  age 
were  publicly  exhibited  in  a  painful  and  pathetic  manner  on 
the  exalted  Bench  of  the  omnipotent  Supreme  Court  of  the 
United  States.  During  the  hearings  of  some  of  the  most 
important  cases,  Justice  Gray,  suffering  from  kidney  trouble, 
frequently  fell  asleep ;  Justice  Shiras  often  nodded  in  slumber, 
blissfully  oblivious  to  the  learned  arguments  of  learned  coun- 
sel who  were  often  put  at  their  wits'  end  to  conceal  their  con- 
fusion. As  for  Justice  Field,  he  could  be  seen,  on  occasion 
after  occasion,  staggering  to  his  seat,  all  out  of  breath,  his 
eyes  bulging,  and 'his  frame  in  the  shiver  of  extreme  decrepi- 
tude; he  required  an  assistant  to  hold  him  up. 


McKenna  Chosen  to  Succeed  Justice  Field. 

Field  died  on  April  9,  1899,  aged  nearly  eighty-three  .years. 
As  personal  wealth  went,  his  estate  was  comparatively  incon- 
siderable. By  his  will,  dated  May  5,  1897,  he  bequeathed  the 
whole  of  his  real  and  personal  estate  to  his  wife,  excepting 
a  portrait  of  his  sister  Emilia  which  he  left  to  his  nephew 
(Emilia's  son),  Associate  Justice  Brewer.  Mementos  and 
books  were  bequeathed  to  other  members  of  the  family. 
Field's  real  estate  consisted  -of  his  fine  house  and  grounds 
facing  the  east  front  of  the  Capitol,  which  property  he  had 
received  from  his  brother,  David  Dudley  Field,  in  1880.  This 
property  was  valued  at  from  $80,000  to  $100,000.  Accord- 
ing further  to  the  inventory  of  Field's  estate  filed  May  5, 
1899,  the  value  of  his  personal  estate  was  $65,000,  compre- 
hending "  a  library,  household  effects,  horses  and  carriages 

40  Northern  Pacific  Railroad  vs.  Smith,  171  U.  S.  Reports,  260. 
Shiras  wrote  the  decision ;  Harlan  dissented.  Brewer,  although  con- 
curring in  the  decision,  excepted  to  some  of  its  conclusions. 


640  HISTORY   OF   THE    SUPREME   COURT 

of  the  value  of  about  $15,000,  and  also  a  small  balance  in 
bank,  stocks  and  bonds  and  promissory  notes  which  will  not 
exceed  in  aggregate  the  value  of  $50,000,  making  the  total  value 
of  his  personal  estate  about  $65,000."  Including  both  real  and 
personal  property  Field's  estate  was,  therefore,  about  $165,000. 

Here  again  was  another  example  of  a  judge  who  by  his 
decisions  had  given  vast  properties  and  privileges  to  indi- 
viduals and  corporations  but  who  was  incorruptible  as  far 
as  bribes  or  jobbing  were  concerned.  Probably  no  judge  was 
ever  a  more  open,  undisguised  tool  of  great  capitalist  inter- 
ests than  Field;  no  judge  served  their  purposes  more  un- 
blushingly  and  with  less  disingenuousness.  But  it  is  evident 
that  he  personally  profited  nothing;  his  corruption  was  that 
of  a  purely  mental  subservience  induced  by  his  class  views, 
attachments  and  obligations.  For  thirty-six  years  Field  had 
been  on  the  Bench  of  the  Supreme  Court  of  the  United 
States,  and  at  the  end  of  that  time  he  left  less  of  an  estate 
than  many  a  petty  merchant  or  even  a  half-way  sucessful 
shyster  lawyer.  No  one  could  be  more  brutally  inhuman  than 
Field  in  his  application  of  law  (or  what  he  construed  to  be  law) 
to  the  advantage  of  capitalists  and  to  the  subjugation  of  the 
workers.  Yet  as  his  will  revealed,  he  had  his  personal  human 
qualities ;  he  did  not  forget  the  twenty-five  years  of  faithful 
service  of  his  messenger,  William  Joice,  to  whom  he  left  a 
legacy  of  $500. 

Field's  successor,  appointed  by  President  McKinley,  was 
Joseph  McKenna,  of  California.  McKenna  had  been  an  ob- 
scure "crossroads"  lawyer  at  Suisun,  California.  The  poli- 
tics of  California  were  notoriously  controlled  by  the  Southern 
and  Central  Pacific  railroads ;  the  political  bosses  were  the 
creatures  of  the  Stanford-Huntington  group  who  saw  to  it 
that  no  one  unfriendly  to  their  interests  was  elected  or  ap- 
pointed to  any  office.  McKenna  was  elected  district  attorney 
in-  his  county,  but  was  tin  ice  defeated  for  Congress  because 


UNDER   CHIEF   JUSTICE   FULLER  64! 

of  his  Roman  Catholic  faith.  But  in  1884  he  was  successful, 
and  was  reelected  to  Congress  of  which  he  was  a  member  for 
three  successive  terms. 

In  Congress  McKenna  spoke  little,  but  when  he  did  so  it  was 
for  the  railroads'  interests,  particularly  those  of  the  Central 
Pacific  Railroad  Company.  In  the  debate  over  the  bill,  in 
1887,  to  establish  the  Interstate  Commerce  Commission,  he 
protested  against  the  long  and  short  haul  clauses,  and  was 
one  of  the  forty-one  Congressmen  voting  against  the  bill.47 

When  the  General  Deficiency  bill  came  up  in  the  House, 
in  February,  1891,  he  again  made  himself  conspicuous  by 
his  defense  of  the  Central  Pacific  Railroad.  At  that  identical 
time,  the  Central  Pacific  owed  the  Government  $60,000,000 
in  principal  and  interest.  Despite  this  debt,  the  Supreme 
Court  of  the  United  States  had  (as  he  have  already  noted) 
handed  down  a  decision  compelling  the  Government  to  pay 
the  railroad  for  the  transportation  of  troops,  supplies,  etc. 
The  General  Deficiency  Bill  contained  an  appropriation  of 
$3,000,000  to  pay  these  railroad  claims.  McKenna  spoke  in 
favor  of  the  provision. 

McKenna :  "  We  know,  sir,  that  the  grants  to  the  railroad 
had  their  impulse  in  patriotism  —  a  patriotism  enterprising 
and  conservative."  [The  reports  of  the  Senate  "  Wilson " 
Investigating  Committee,  the  Pacific  Railway  Commission  and 
the  San  Francisco  Grand  Jury  had  successively  and  specific- 
ally revealed  that  the  kind  of  "  patriotism  "  used  had  been  the 
distribution  of  a  total  of  more  than  $4,000,000  in  bribes.]48 

47  Congressional  Record,  Forty-ninth  Congress,  Second  Session,  Vol. 
18,  Part  I :   pp.  857  and  881.    It  was  when  this  bill  was  before  the 
House  that  Representative  Henderson,  later  Speaker,  said :     "  This  city 
is  swarming  with  keen,  zealous,  able  agents  of  the  railroad  power,  try- 
ing to  defeat  the  passage  of  this  bill.     Every  vote  cast  at  their  dictation, 
and  every  vote  against  this  bill,  is  a  vote  for  railroad  supremacy  against 
the  people." 

48  It  is  hardly  necessary  to  say  that  we  have  given  the  particulars  of 
these  briberies  in  preceding  chapters. 


642  HISTORY   OF   THE    SUPREME   COURT 

"  Mr.  Chairman,"  McKenna  went  on,  "  there  is  nothing  to 
justify  the  refusal  of  this  payment  except  a  false  sentiment, 
and  possibly  some  false  politics." 

A  member  — "  Claptrap !  " 

McKenna :  "  And  as  the  gentleman  near  me  suggests, 
claptrap.  It  would  be  claptrap  if  it  were  not  adorned  by 
gentlemen  of  ability,  and  sanctioned  by  them."  49 

The  Pacific   Railroads  Victorious. 

Soon  after  this,  McKenna,  on  March  17,  1892,  was  ap- 
pointed a  United  States  Circuit  Court  judge,  to  sit  in  the 
California  circuit.  A  year  later  Leland  Stanford  died,  and  it 
was  stated  that  McKenna  was  named  in  the  will  as  one  of  the 
executors.  When  McKenna  was  on  the  Circuit  Bench 
the  suit  of  the  Government  to  recover  $15,237,000  from  the 
Stanford  estate  as  its  share  of  the  Pacific  Railroads'  indebted- 
ness, was  decided  by  that  court  against  the  Government. 
This  decision  was  sustained  by  the  Supreme  Court  of  the 
United  States.50  Various  other  cases  affecting  the  interests 
of  the  Pacific  railroads  were  decided  favorably  by  the  Cir- 
cuit Court  when  McKenna  was  a  member.  The  action  in- 
volving the  claim  of  the  Southern  Pacific  Railroad  Company 
to  continued  possession  of  the  water  front  of  Oakland  was 
held  up  for  nearly  two  years,  creating  much  unfavorable 
popular  feeling,  and  in  the  case  of  the  railroads  against  the 
California  Railroad  Commission,  McKenna's  colleague, 
Judge  Ross,  delivered  the  Court's  decision  holding  that  the 
Commission  had  not  the  power  to  fix  rates,  and  that  the  eight 
per  cent,  reduction  ordered  was  illegal.51 

49  Congressional  Record,  Fifty-first  Congress,  Second   Session,  Vol. 
22,  Part  4,  p.  3397. 

50  161  U.  S.  Reports,  413.     Harlan  wrote  the  Court's  unanimous  opin- 
ion holding  that  the  various  acts  of  Congress  contained  no  clause  im- 
posing  personal    responsibility   upon   the    stockholders.     Field   was,    of 
course,  on  the  Supreme  Court  Bench  in  1896,  the  year  of  this  decision. 

51  Southern  Pac.  R.  R.  vs.  R'd  Commissioners,  79  Federal  Reports,  236. 


UNDER    CHIEF   JUSTICE   FULLER  643 

During  the  American  Railway  Union  strike  in  1894,  this 
court  also  issued  a  comprehensive  injunction  restraining  the 
strikers  from  interfering  with  the  United  States  mail  trains. 
The  injunction  enabled  the  railroads  to  defeat  the  strikers 
by  attaching  mail  cars  to  all  trains,  and  by  carrying  Federal 
troops  ostensibly  to  protect  those  cars.. 

When  McKinley  became  President  in  1897,  he  appointed 
McKenna  Attorney-General  of  the  United  States.  It  was 
currently  reported  in  the  newspapers,  and  not  denied,  that 
McKenna  consented  to  accept  this  post  on  the  understanding 
that  when  Justice  Field  resigned  he  would  be  appointed  to 
succeed  Field.  At  this  point  it  should  be  noted  that  E.  H. 
Harriman  was  acquiring  the  Central,  Southern  and  other 
Pacific  railroads;  Harriman  contributed  heavily  to  McKinley's 
campaign  fund,  as  he  later  did  to  Roosevelt's.  McKenna's 
appointment  as  Attorney-General  aroused  a  storm  of  severe 
criticism,  the  point  of  which  was  that  his  decisions  had  always 
favored  trusts  and  corporations. 


Protests  Against  McKenna's  Appointment. 

But  those  criticisms  were  mild  compared  to  the  widespread 
strictures  upon  him  when  he  was  appointed  to  the  Supreme 
Court  of  the  United  States. 

Protests  poured  in  upon  the  United  States  Senate.  One 
extended  petition  from  Oregon,  signed  by  former  United 
States  Attorney-General  George  H.  Williams,  Judges  Gil- 
bert, Shattuck,  Sears,  George,  Bellinger  and  many  others, 
including  fifty  members  of  the  Portland  (Ore.)  bar,  de- 
manded the  rejection  of  McKenna's  appointment,  on  the 
ground  that  he  was  unfit.  ".  .  .  The  Hon.  Jos.  McKenna 
among  his  legal  brethren  has  not  been  accorded  a  high  place, 
but  on  the  contrary,  the  consensus  of  opinion  has  been  and 
is  that  he  is  not,  either  by  natural  gifts,  acquired  learning 
or  decision  of  character,  qualified  for  any  judicial  place  of 


644  HISTORY   OF   THE    SUPREME   COURT 

importance,   much   less    for   the   highest   place    in   the   land. 

» 

On  December  6,  1897,  a  memorial  signed  by  many  promi- 
nent lawyers,  was  sent  from  San  Francisco  to  the  Senate : 
"  In  the  first  place,  we  accuse  the  judge  of  being  slow  and 
incompetent.  He  is  a  man  of  confused  ideas,  and  his  record 
on  the  Bench  is  disgraceful.  .  .  .  During  the  last  two 
years  of  his  administration  of  the  affairs  of  his  circuit,  he 
had  but  three  jury  cases,  six  court  cases,  twenty-seven  de- 
murrers and  motions.  Many  of  the  demurrers  were  left  un- 
decided. On  retiring  he  left  thirty-five  important  matters 
wholly  undecided.  He  had  one  case  of  minor  importance 
under  advisement  for  two  and  a  half  years.  In  Case  No. 
12,127,  tne  suit  of  the  Railroad  Commission  against  the 
Southern  Pacific  Railroad,  he  was  six  months  hemming  and 
hawing  over  the  simplest  matters;  questions  that  any  other 
judge  of  the  most  mediocre  ability  would  have  passed  on 
inside  an  hour.  He  feared  he  would  displease  either  the 
railroad  or  the  people."  The  petition  concluded  by  referring 
to  McKenna  as  "  a  small  man  in  every  sense,  and  a  cunning 
politician  and  trimmer."  52 

According  to  a  San  Francisco  newspaper  which  had  bitterly 
opposed  the  Southern  Pacific  Railway,  "  those  opposing 
McKenna  have  been  working  stealthily  for  their  petition. 
.  .  .  Their  excuse  for  not  coming  out  more  boldly  is  that 
if  it  had  been  known  .  .  .  W.  F.  Herrin  and  the  Southern 
Pacific  would  at  once  have  started  a  counter  petition.  .  .  . 
This  would  have  been  done  in  gratitude  for  the  Railroad  Com- 
mission case,  and  the  silence  on  the  Open  Water  Front  con- 
troversy. ...  At  the  time  of  the  decision,  some  of  the 
remarks  made  by  the  attorneys  for  the  people  were  of  so 
decidedly  a  derogatory  nature  that  it  was  a  wonder  that 
they  had  not  become  public.  .  .  .  Stories  are  put  in  cir- 

02  These  petitions  were  published  in  all  of  the  leading  newspapers  of 
the  time. 


UNDER   CHIEF   JUSTICE   FULLER  645 

culation  that  McKenna  is  not  of  a  mental  caliber  to  sit  upon 
the  Supreme  Bench,  but  behind  the  open  controversy  looms 
up  a  more  guarded  insinuation  of  the  Attorney-General's  sub- 
jection to  corporation  influences."  53 

In  addition  to  these  and  other  protests  many  newspapers 
in  editorials  severely  denounced  the  appointment.  Of  the 
numerous  editorials,  we  shall  quote  from  the  New  York 
World,  a  Democratic  newspaper  which,  however,  had  vir- 
tually advocated  the  election  of  McKinley  in  the  McKinley- 
Bryan  campaign  of  1896.  Said  the  World  of  McKenna : 

But  he  is  equally  unfit  by  reason  of  his  affiliations  and  actions  as  a 
lawyer  and  a  judge.  He  has  been  the  tool  of  corporations  and  the  pet 
of  plutocrats.  His  advancement  has  been  due  entirely  to  the  favor 
of  Stanford,  Huntington  and  other  multimillionaires  of  his  section. 
Every  important  decision  he  made  in  corporation  cases  was  clearly  in  the 
interests  of  his  former  clients.  He  represents  in  a  peculiar  degree 
that  perversion  of  judicial  power  to  the  service  of  plutocracy,  against 
which  6,500,000  voters  protested  in  the  last  election.  [This  referred  to 
the  Bryan  campaign,  the  platform  of  which  severely  criticized  the 
Supreme  Court  for  its  shifting  on  the  income-tax  decision.]  To  con- 
firm him  in  a  seat  on  the  Bench  of  the  Supreme  Court  would  be  an 
infamous  betrayal  of  the  people's  trust.54 

Another  editorial  in  the  same  newspaper  the  next  day  de- 
clared : 

The  nomination  of  McKenna  to  be  a  justice  of  the  Supreme  Court 
is  a  scandalous  abuse  of  the  appointive  power,  (i)  The  man's  unfit- 
ness  by  reason  of  a  lack  of  learning,  a  lack  of  capacity,  a  lack  of 
fruitful  experience  and  a  lamentable  lack  of  that  high  integrity  which 
is  the  most  essential  qualification  of  a  Supreme  Court  Justice,  is  at- 
tested by  the  indignant  protest  of  the  judges  and  lawyers  in  his  own 
part  of  the  country.  (2)  His  entire  career  has  been  one  of  servitude 
to  the  Pacific  Railway  robbers,  trust  magnates  and  their  kind,  and  even 
his  decisions  as  a  judge  upon  the  bench  have  been  tainted  by  evidence 

53  San  Francisco  Examiner,  December  4,   1897.     W.  F.  Herrin  was 
both  lawyer  and  political  manipulator,  first  for  Stanford  and  Hunting- 
ton,  and  then  for  their  successor,  Harriman. 

54  New  York  World,  December  17,  1897. 


646  HISTORY   OF   THE   SUPREME   COURT 

of  that  subserviency.  It  is  a  shame  to  put  this  man  upon  the  bench 
of  the  highest  court  in  the  land.  It  is  a  wrong  to  the  nation  and  its 
people.  It  is  an  insult  to  widespread  public  opinion.  It  is  a  menace 
to  the  public  welfare.  It  is  a  blistering  disgrace  to  the  administration 
which  is  responsible  for  it.  The  Senate's  duty  is  clear.  It  should 
reject  the  nomination  as  shamefully  unfit.55 


A  Suspicious  Feature. 

No  doubt  much  in  these  protests  was  well  founded  and  to 
the  point.  But  there  was  one  suspicious  feature  of  the 
opposition  to  McKenna  which  we  cannot  pass  by  without 
comment. 

Despatches  in  the  newspapers  from  Tacoma  freely  stated 
that  the  protests  against  McKenna  originated  in  San  Fran- 
cisco soon  after  the  return  from  that  city  of  Benjamin  F. 
Grosscup.  Now  Grosscup,  as  we  have  noted,  was  (as  a  mem- 
ber of  the  firm  of  Crowley  and  Grosscup)  an  attorney  for 
the  interests  of  the  Northern  Pacific  Railroad  in  the  States 
of  Washington  and  Oregon.  The  clear  inference,  therefore, 
was  that  the  Northern  Pacific  Railway  Company  was  seeking 
to  prevent  its  southern  transcontinental  competitor,  the  South- 
ern Pacific  Railway,  from  putting  McKenna  on  the  Supreme 
Court  Bench.  Evidently  the  conflict  was  one  between  two 
immense  railroad  corporations  with  all  of  their  associated  and 
subsidiary  interests,  as  to  which  would  command  the  choice 
of  the  new  Justice. 

And  it  was  so  understood  in  Washington.  The  batches  of 
petitions  and  protests  against  the  confirmation  of  McKenna 
were  of  no  avail,  especially  in  a  Senate  where  but  few  mem- 
bers were  not  railroad  attorneys  or  railroad  magnates,  and 
where  Harriman's  influence  at  that  particular  stage  proved 
all  potent.  McKenna's  nomination  was  confirmed. 

Few  appointments  to  the  Supreme  Court  had  aroused  such 
caustic  personal  criticism,  publicly  expressed,  as  that  of  Mc- 

65  New  York  World,  December  18,  1897. 


UNDER    CHIEF   JUSTICE    FULLER  647 

Kenna.  Yet  it  must  be  said  that  McKenna's  course  on  the 
Supreme  Court  Bench  was  by  no  means  all  that  the  charges 
in  those  protests  would  lead  one  to  expect.  In  one  memorable 
case,  at  least,  his  dissenting  opinion  stood  forth  as  an  excep-' 
tional  and  noteworthy  defense  of  the  grossly  invaded  rights 
of  kidnapped  working-class  leaders  at  a  time  when  the  most 
powerful  capitalist  interests  were  banded  in  an  effort  to  prose- 
cute those  leaders  to  the  limit  of  judicial  execution. 

This,  however,  is  anticipating.  With  McKenna's  confirma- 
tion criticism  of  his  career  ceased,  but  an  occasion  arose  three 
years  later  when  both  he  and  Harlan  were  invidiously  at- 
tacked in  the  United  States  Senate.  As  a  result  of  the  Span- 
ish-American War,  in  1898,  the  United  States  acquired  Porto 
Rico  and  the  Philippines.  Instantly,  trusts  and  other  syndi- 
cates of  capitalists  set  out  to  take  advantage  of  the  change. 
The  Tobacco  Trust,  the  Sugar  Trust  and  other  trusts  coveted 
lands  in  the  conquered  regions  and  trade  advantages,  while 
associations  of  powerful  capitalists  rushed  to  get  concessions 
for  railroads,  water  rights,  timber  lands,  mines,  and,  in  brief, 
all  of  the  resources  worth  while  appropriating. 

"Constitution  Does  Not  Follow  the  Flag." 

But  the  question  remaining  unsettled  was  this :  Were  those 
colonies  to  be  held  as  subjugated  possessions  or  were  they  to 
be  admitted  as  integral  parts  of  the  United  States?  Did  the 
Constitution  apply  to  them? 

To  determine  this  issue,  several  test  cases  growing  out  of 
disputed  customs  payments  were  carried  up  to  the  Supreme 
Court  of  the  United  States.  During  the  time  when  these 
"  Insular  Cases  "  were  under  consideration,  President  McKin- 
ley  nominated  sons  of  Justice  Harlan  and  Justice  McKenna  to 
important  Government  posts  in  Porto  Rico.  This  fact  led  to 
biting  comments  by  Senators  Pettigrew,  Teller  and  Butler  on 
the  subverting  of  the  "independence  of  the  judiciary";  the 


648  HISTORY    OF   THE    SUPREME   COURT 

appointments,  they  declared,  singularly  coincided  with  the  fact 
that  the  question  of  the  status  of  the  colonies  was  before  the 
Supreme  Court  at  that  precise  time.  The  general  effect  of 
the  various  associated  decisions  was  certainly  in  line  with  that 
desired  by  McKinley  and  the  capitalist  groups  behind  him. 
"  The  Constitution  did  not  follow  the  flag,"  the  Supreme 
Court  decided,  thereby  reducing  the  insular  conquests  to  mere 
appendages. 

Since  this  decision,  the  spoliation  of  the  Philippines  has 
gone  on  uninterruptedly;  syndicates  and  trusts  of  American 
capitalists  have  obtained  from  the  local  officials  great  areas 
of  sugar  and  timber  lands,  mines,  coal  deposits  and  railway 
and  other  concessions. 

At  this  point  it  is  necessary  to  chronicle  the  appointment 
of  three  new  Justices  of  the  Supreme  Court.  The  first  of 
these  was  Oliver  Wendell  Holmes,  Jr.,  selected  to  succeed 
Justice  Gray,  who  died  in  1902. 

Justice  Holmes  Succeeds  Gray. 

Holmes  was  of  a  different  type  from  the  usual  Supreme 
Court  appointment.  He  had  never  represented  any  large  cor- 
porations. As  a  member  of  the  Boston  firm  of  Shattuck 
and  Holmes,  his  practice  was  for  comparatively  small  corpora- 
tions, middle-class  business  men  and  rich  landholders  of,  how- 
ever, a  not  very  important  group  compared  to  the  great  pluto- 
crats. 

Shattuck  and  Holmes  had  been  attorneys,  beginning  in  1873, 
for  such  corporations  as  the  Dorchester  Insurance  Company; 
the  Winnisimmet  (ferryboat)  Company;  the  receivers  of  the 
Mechanics'  Insurance  Company  and  for  similar  corporations.56 
Shattuck,  while  Holmes'  partner,  was  attorney  for  the  South 
Boston  Railroad,  the  Eastern  Railroad  bondholders  and  so 
forth.67  We  see  Holmes,  too,  as  a  young  lawyer,  contesting 

56  112  Mass.  Reports,  150;  114  Ibid.,  66;  120  Ibid.,  497,  etc, 
67  121  Ibid.,  487,  etc. 


UNDER   CHIEF   JUSTICE   FULLER  649 

claims  for  damages  due  to  injuries,58  and  arguing  against  the 
rights  of  workers.  One  such  case,  for  example,  was  that  of 
Temple,  Watford  and  fellow  seamen  against  vessel  owners 
for  unpaid  wages  of  which  they  had  been  defrauded.  Holmes 
argued  that  Turner,  one  of  the  ship's  owners,  did  not  person- 
ally make  the  contract,  or  engage  the  seamen,  and,  therefore, 
could  not  be  held  technically  responsible.  But  the  Massachu- 
setts Supreme  Court,  on  September  7,  1877,  decided  in  ^favor 
of  the  seamen.50 

Holmes  was  one  of  that  type  of  lawyer  that  is  personally 
honest,  but  hide-bound  by  class  views  and  class  associations  — 
"  a  Back  Bay  specimen  "  as  some  persons  termed  him.  He, 
no  more  than  the  other  Justices,  knew  or  cared  about  the  con- 
ditions under  which  the  working  class  had  to  labor.  Like 
them,  he  was  educated  and  developed  in  a  fixed  environment 
of  both  law  and  custom,  as  well  as  of  self-interest  —  an  en- 
vironment hostile  to  the  working  class,  and  regarding  it  as  a 
class  of  preordained  drudges  to  be  looked  down  upon  as  hope- 
lessly inferior.  The  class  among  which  Holmes  moved,  and 
from  which  he  had  derived  his  clientele,  was  suspicious  and 
resentful  of  the  slightest  move  of  the  working  class  to  better 
its  conditions,  knowing  that  the  extent  of  its  sway  and  profits 
depended  upon  the  corresponding  subjugation  and  degradation 
of  the  workers.  On  the  whole,  this  analysis  could  be  applied 
to  Holmes  without  injustice. 

A  professor  of  law  at  Harvard  in  1882,  Holmes  became 
an  Associate  Justice  of  the  Massachusetts  Supreme  Court  in 
that  year,  and  from  1882  to  1889  was  its  Chief  Justice.  When 
appointed  to  the  Supreme  Court  of  the  United  States  he  was 
sixty-one  years  old.  Roosevelt's  selection  of  him  was  gener- 
ally understood  to  be  somewhat  of  a  personal  choice.  Holmes' 
father  had  been  an  essayist  of  tolerable  fame ;  and  Roosevelt, 
who  liked  to  pose  as  a  literary  luminary,  was  partial  tQ  writers 

58  Joy  vs.  Winnisimmet  Company,  114  Mass.  Reports,  66. 
?9  Temple  vs.  Turner,  123  Mass,  Reports,  125, 


650  HISTORY   OF   THE    SUPREME   COURT 

and  to  the  sons  of  writers.  But  had  not  Holmes  abundantly 
proved  that  on  the  general  issues  of  property  domination  his 
class  instincts  were  thoroughly  dependable,  his  appointment 
would  not  have  run  the  gauntlet  of  the  United  States  Senate, 
the  overwhelming  majority  of  which  was  composed  of  vigilant 
corporation  attorneys,  or  of  the  magnates  themselves.00 

Shiras  Resigns,  and  Day  Takes  His  Place. 

The  next  appointment  to  the  Supreme  Court  made  by  Roose- 
velt was  that  of  William  R.  Day  to  succeed  Justice  Shiras, 
who  resigned  on  February  23,  1903. 

Day's  appearance  was  so  striking  in  one  respect  that  it  com- 
manded the  instant  scrutiny  of  the  observer.  His  body  was 
so  attenuated  that  he  seemed  almost  to  have  none,  and  his  leg 
bones  were  not  much  larger  than  the  average  man's  arm 
bones.  He  had  lived  among  musty  law  books  which  appeared 
to  have  transmitted  their  atmosphere  to  him,  devitalizing  the 
warm  currents  of  heart  and  mind.  In  fact,  it  might  be  said 
that  legal  tomes  had  been  the  first  objects  that  his  infantile 
eyes  had  perceived ;  his  father,  Luther  Day,  was  a  lawyer  and 
judge,  long  serving  as  a  Justice  of  the  Ohio  Supreme  Court. 
Law  became  the  family  heritage ;  a  brother  of  William  R. 
Day  is  now  a  judge  of  the  Common  Pleas  Court,  at  Canton, 
Ohio,  and  two  sons  of  William  R.  Day  are  lawyers,  one  asso- 
ciated with  a  firm  of  corporation  lawyers  in  Cleveland,  the 
other,  William  R.  Day,  II,  a  Federal  judge. 

Yet  buried  as  Day's  mind  was  in  the  sepulchral  caverns  of 
moldy  precedents  of  law,  no  man  was  more  zealous  and  alert 
in  applying  those  precedents  to  the  changing  interests  of  cor- 

00  Philander  C.  Knox,  who  had  been  attorney  for  Carnegie  and  later 
for  the  Steel  Trust,  was  Attorney-General  of  the  United  States  at  this 
time,  and  even  Vice-Presiclent  Fairbanks,  Roosevelt's  official  associate 
(in  1905-1909),  had  been,  shortly  before  his  previous  election  as  United 
States  Senator,  president  of  the  Terre  Haute  and  Peoria  Railway  Com- 
pany.—  ("Poor's  Railroad  Manual"  for  1890,  p.  1365.) 


UNDER   CHIEF  JUSTICE   FULLER  651 

porations.  He  made  the  past  serve  the  purposes  of  the  pres- 
ent ;  in  unremitting  and  able  retainership  to  his  clients  his 
record  as  an  attorney  was  consistent.  He  wore  no  double 
coat ;  he  made  no  pretenses  of  caring  for  the  interests  of  the 
poor,  the  helpless  and  defenseless.  Candidly  and  openly  he 
opposed  them,  which  is  equivalent  to  saying  that  he  was  a 
genuine  corporation  attorney,  bent  solely  and  inexorably  upon 
performing  the  service  for  which  he  was  paid. 


Day  as  a  Corporation  Lawyer. 

Some  forty  years  ago  he  formed  a  law  partnership  with 
William  A.  Lynch,  at  Canton,  Ohio,  under  the  firm  name  of 
Lynch  and  Day.  The  records  abundantly  tell  how  they  pros- 
pered. Lynch,  for  example,  held  the  lucrative  post  of  local 
attorney  for  the  Pittsburg,  Fort  Wayne  and  Chicago  Rail- 
way (now  a  part  of  the  Pennsylvania  Railroad).  He  was 
also  a  director  of  the  Connotton  Valley  Railroad.61  The 
name  of  the  firm  varied  at  different  times ;  in  1880  it  was 
Lynch,  Day  and  Lynch,  the  other  Lynch  being  Austin,  a 
brother  of  William.  For  many  years  the  firm  represented 
the  Valley  Railway  Company02  (now  of  the  Baltimore  and 
Ohio  Railroad  system).  During  more  than  twenty  years  Wil- 
liam R.  Day  appeared  with  great  frequency  as  attorney  for  the 
Wheeling  and  Lake  Erie  Railroad,03  which  became  one  of  the 
Gould  railroads. 

For  a  long  series  of-  years  Day  and  his  partners  were  attor- 
neys for  the  Canton  Street  Railway  Company,  the  Connotton 
Valley  Railroad  Company  (now  part  of  the  Wheeling  and 
Lake  Erie  Railroad)  ;  the  Farmers'  Bank;  the  New  England 
Trust  Company ;  the  City  National  Bank  of  Canton ;  the  Ma- 

01  "  Poor's  Railroad  Manual  "  for  1880:  p.  612. 

02  See,  Appearance  Docket,  Court  of  Common  Pleas,  Stark  County, 
O.,  Vol.  54,  p.  1673,  Vol.  56,  p.  3037,  etc. 

63  Ibid.,  Vols.  54,  55,  63,  68,  etc.,  etc.,  in  which  his  appearances  as 
counsel  are  entered  with  great  frequency. 


652  HISTORY   OF   THE    SUPREME   COURT 

honing  National  Bank  of  Youngstown ;  the  Alliance  Bank ; 
the  Cleveland  and  Canton  Railway  Company ;  the  Canton  Gas 
Light  and  Coal  Company;  the  Dueber  Watch  Case  Company, 
the  American  Screw  Company;  the  Bolton  Steel  Company 
(now  a  constituent  of  the  Steel  Trust)  ;  the  Alliance  Gas  Com- 
pany; the  Wrought  Iron  Bridge  Company  (a  large  corpora- 
tion absorbed  by  the  American  Bridge  Company)  ;  the  Elec- 
tric Light  and  Power  Company,  the  Massillon  Valley  Coal 
Company  (a  large  coal-mining  corporation  in  Ohio)  ;  the 
Rough  Mining  Mountain  Cdmpany  and  other  corporations.64 
In  fine,  Day's  practice  was  a  general  corporation  practice  for 
railroads,  trusts,  banks,  street  railways,  gas  and  electric  light 
companies,  coal-mining  companies  and  many  kindred  corporate 
concerns. 

Far.  from  being  a  noted  lawyer,  Day  was  simply  a  local 
'corporation  attorney;  he  did  not  appear  in  any  large  corpora- 
tion actions.  When  such  suits  came  up,  the  corporation  cases 
were  argued  by  lawyers  of  national  reputation.  In  his  railroad 
practice  Day  usually  appeared  to  contest  suits  brought  for 
damages  for  injuries. 

The  Case  of  Mary  Birtch. 

One  of  these  cases,  giving  Day  not  a  very  enviable  reputa- 
tion among  common  folk  in  Canton,  was  the  action  of  Mary 
Birtch  against  the  Wheeling  and  Lake  Erie  Railroad.  In  a 
wreck  near  Navarre,  Ohio,  in  1891,  Mary  Birtch,  sixty-two 
years  old,  was  one  of  the  passengers  hurt ;  her  spinal  column 
was  so  severely  injured  that  she  could  hardly  move.  She 
brought  suit  for  $10,000  damages. 

When  the  case  came  up  in  1894  in  the  Court  of  Common 
Pleas  at  Canton,  Day  personally  appeared  as  the  railroad's 
counsel  to  contest  her  suit.  The  evidence  proved  that  the 

64  The  above  facts  are  to  be  found  in  Ibid.,  Vols.  54  to  58,  60,  62-64, 
68-69,  70,  etc. 


UNDER   CHIEF   JUSTICE   FULLER  653 

ties  were  so  rotten  that  the  rails  parted  and  the  cars  were  de- 
railed. But  throughout  the  trial  the  proceedings  were  so  con- 
ducted that  the  jury  became  prejudiced  against  her.  Judge 
McCarthy  would  not  allow  her  lawyer  or  her  doctors  to  be 
present  at  a  physical  examination  to  determine  her  injuries. 
The  judge  allowed  the  railroad's  physician  to  say  that  she  was 
faking,  and  Judge  McCarthy  himself  denounced  her  in  open 
court  as  an  old  fake.  The  jury  gave  Mary  Birtch  a  verdict  for 
$65.  Her  counsel  made  a  motion  for  a  new  trial ;  this,  Day 
vigorously  opposed  and  the  judge  denied  the  application. 

Six  weeks  later  Mary  Birtch  died.  A  post-mortem  exam- 
ination by  three  physicians  revealed  that  her  spinal  column 
had  been  so  seriously  injured  that  it  had  become  completely 
decayed.  She  had  suffered  great  pain  and  her  death  was  di- 
rectly caused  by  the  injury. 

A  Five-Cent  Judgment. 

A  result  of  the  same  wreck  was  the  action  of  William  Mc- 
Lain's  Administrator  for  damages.  A  young  route  agent  in 
the  postal  service,  McLain  jumped  when  the  cars  were  de- 
railed. A  snag  of  a  bush  along  the  track  penetrated  his  abdo- 
men ;  peritonitis  set  in  and  caused  his  death.  Day  appeared  in 
court  as  attorney  for  the  Wheeling  and  Lake  Erie  Railroad, 
and  argued  that  McLain  was  guilty  of  negligence  in  jumping. 
The  entry  in  the  Appearance  Docket  at  Canton  shows  that  on 
February  10,  1893,  the  jury  brought  in  a  verdict  for  five  cents 
damages. ™  A  motion  on  April  7,  1893,  f°r  a  new  trial  was 
overruled,  and  each  party  was  ordered  to  pay  its  own  costs. 

A  similar  case  was  that  of  Frederick  Heiman's  Adminis- 
trator vs.  the  Cleveland  Terminal  and  Valley  Railroad  Com- 
pany (at  present  belonging  to  the  Baltimore  and  Ohio  Rail- 
road system).  Day's  firm  was  counsel  for  the  railroad 

65  See,  Appearance  Docket,  Court  of  Common  Pleas,  Stark  County, 
for  that  year,  p.  8024. 


654  HISTORY   OF   THE   SUPREME   COURT 

company.00  On  March  15,  1898,  a  verdict  for  $4,200  was  given 
for  the  plaintiff.  The  railroad's  motion  for  a  new  trial  was 
overruled,  but  the  judge  struck  $1,700  from  the  judgment. 
If  the  plaintiff  had  not  consented  to  this  the  motion  for  a  new 
trial  would  have  been  granted.  The  State  Circuit  Court  re- 
versed the  decision  and  remanded  the  case  for  a  new  trial. 
The  judgment  in  the  new  trial  was  only  $1,000. 

Death  a  Part  of  the  Worker's  Task. 

Another  of  many  such  cases  in  which  Day,  or  the  firm  of 
which  he  was  a  member,  appeared,  was  the  action  of  David  L. 
Morgan  vs.  the  Krause  (Coal)  Mining  Company.  This  cor- 
poration was  represented  by  Day,  Lynch  and  Day  (for  so  the 
firm  was  now  constituted).  The  precedent  set  in  this  case  is 
a  noted  one  in  Ohio. 

On  February  17,  1891,  Morgan  had  been  injured  by  an  ex- 
plosion of  fire  damp.  When  his  suit  came  up  the  Court  ex- 
cluded the  evidence  of  Kline,  the  mine  boss ;  if  Kline  had  been 
allowed  to  testify,  the  fact,  it  was  alleged,  would  have  been 
proved  that  the  mine  owners  had  not  supplied  safety  lamps. 
The  result  of  this  omission  of  testimony,  as  well  as  the  fear 
of  other  miners  to  testify  (because  they  might  be  deprived  of 
their  jobs)  was  a  verdict  in  favor  of  the  company.  The  Ohio 
Supreme  Court  affirmed  the  action  of  Common  Pleas  on  the 
ground  that  "  where  the  injured  party  knowingly  and  delib- 
erately assumes  a  risk  that  leads  him  into  immediate  danger, 
he  ought  not  to  have  a  remedy  for  injuries  arising  from  perils 
that  are  obvious  and  certain."  °7  A  characteristic  judicial  con- 
struction; the  laws  decree  that  employers  should  provide  safe 
tools  and  proper  precautions,  but  the  judges  declare  tkat  death 
is  a  fixed  part  of  a  worker's  task. 

These  are  not  isolated,  but  typical,  specimens  of  the  uniform 
kind  of  cases  that  Day  pleaded  for  several  decades;  he  was 

66  Appearance  Docket,  Stark  County,  etc.,  Vol,  71 :  p.  11,913. 

67  Ohio  State  Reports,  Vol.  53 :  26-43. 


UNDER   CHIEF   JUSTICE   FULLER  655 

a  regular  corporation  attorney  appearing  constantly  to  contest 
the  claims  of  workers  or  their  survivors  for  damages  for  in- 
juries causing  disability  or  death.  He  himself  lived  in  the 
provincial  aristocratic  style  of  the  well-paid  corporation  law- 
yer ;  and  if  he  cherished  a  latent  spark  of  sympathy  for  the 
disfigured,  the  maimed  and  crippled,  the  widowed  and  or- 
phaned, it  was  smothered  by  the  income  that  he  received  from 
railroad  and  minhig  companies. 

Nor  is  his  long  record  of  tenacious  pleading  against  im- 
poverished, injured  or  slain  workers  introduced  here  aimlessly. 
It  was  significant  of  the  type  of  lawyer  often  chosen  for  judge- 
ships,  especially  for  seats  on  the  Supreme  Court  of  the  United 
States.  Chief  Justice  Waite,  Chief  Justice  Fuller,  Justices 
Swayne,  Shiras  and  others  had  ascended  to  their  eminence  by 
route  of  (among  other  corporation  practices)  seeking  to  pre- 
vent injured  workers  or  the  destitute  widows  or  children  of 
the  killed  from  recovering  damages. 

One  of  the  most  important  and  insistent  series  of  cases 
coming  up  before  the  courts  was  that  resulting  from  employ- 
ers' liability  laws.  The  slaughter  of  workers  in  the  industrial 
field  was  immense,  greater  in  a  single  year  than  the  most 
dreadful  carnage  of  the  most  destructive  battle  the  world  has 
ever  known.  Nevertheless,  the  railroad,  mining  and  industrial 
corporations  contested  even  the  mildest  legislation  designed  to 
compel  them  to  install  improved  equipment  and  safety  appli- 
ances, and  violated  such  laws  as  did  exist. 

On  the  railroads  alone,  from  the  years  1888  to  1907,  a  total 
of  53,046  railroad  employes  were  killed  and  more  than  800,- 
ooo  were  maimed  or  crippled  while  at  work.68  Such  lawyers 

08  These  figures  are  compiled  from  the  annual  reports  of  the  Inter- 
state Commerce  Commission.  See  particularly  the  Nineteenth  Annual 
Report  of  that  Commission  (1907)  giving  a  tabulation  on  p.  109.  But 
even  these  figures  give  no  adequate  picture  of  the  full  and  terrible 
truth.  At  a  recent  hearing  in  Washington,  this  fact  was  brought  out : 
That  only  such  as  died  within  twenty-four  hours  after  accidents,  were 
reported  to  the  Interstate  Commerce  Commission  under  the  list  of 
deaths.  Otherwise,  they  were  included  in  the  roll  of  "  accidents." 


656  HISTORY  OF  THE  SUPREME  COURT 

as  Fuller,  Day,  Shiras  and  others  had  used  all  of  their  in- 
genuity as  attorneys  to  argue  the  narrowing  of  the  laws  ap- 
plied to  workers  and,  on  the  other  hand,  the  extension  of  the 
rights,  privileges  and  immunities  of  corporations.  And  this 
was  the  type  of  lawyer  going  on  the  Bench  of  the  Supreme 
Court  of  the  United  States  —  men  who  had  faithfully  done 
their  careers  of  subservient  service  to  the  railroad,  mining  and 
industrial  magnates.  After  becoming  Justices  they  generally 
construed  laws  and  handed  down  decisions  precisely  in  line 
with  what  they,  as  attorneys,  had  received  fat  retainers  to 
argue. 

Day,  too,  was  now  elevated  to  a  judgeship.  Appointed  a 
member  of  the  United  States  Circuit  Court,  he  sat  with  Taft 
(now  President  of  the  United  States)  and  Lurton  (now  a 
United  States  Supreme  Court  Justice).  This  trio  on  the  Sixth 
Circuit,  handed  down  delectable  decisions  refusing  time  after 
time,  to  award  damages  to  destitute  workers  injured  through 
no  fault  of  their  own.00  Selected  by  President  McKinley 
solely  because  he  was  McKinley's  neighbor  in  Canton  and  his 
close  personal  friend  and  attorney,  Day  was  appointed  As- 
sistant Secretary  of  State  of  the  United  States,  and  subse- 
quently Secretary  of  State.  It  was  when  occupying  this  post 
that  Day  negotiated  the  generous  treaty  with  Spain  by  which 
$20,000,000  was  paid  to  Spain  for  the  already  conquered  Phil- 
ippine Islands,  and  it  was  Day  who  arranged  the  negotiations 
by  which  the  United  States  munificiently  paid  $18  an  acre 
for  the  Roman  Catholic  Friar  lands  in  the  Philippines  —  a 
great  part  of  which  lands  have  since  been  sold  by  the  Govern- 
ment to  the  Sugar  Trust  for  $6.50  an  acre.70  This  latter  fact 

09  See  later.    Both  Taft  and  Lurton  had  been  railroad  attorneys. 

70 The  San  Jose  Estate  (Friar  lands)  of  55,000  acres  of  Mindoro 
Island,  was  sold  to  E.  L.  Poole,  representing  H.  O.  Havemeyer  and 
associates ;  the  Isabella  Tract  of  49,000  acres  was  taken  over  by  E.  B. 
Bruce,  representing  the  Havemeyer  syndicate;  and  other  Friar  lands 
were  likewise  appropriated. —  See,  "  Friar  Lands  Inquiry,"  House  Com- 
mittee on  Insular  Affairs,  Feb.,  1911 :  40-44. 


UNDER   CHIEF   JUSTICE   FULLER  657 

is  stated  merely  for  explanatory  reasons ;  Day  had  no  connec- 
tion, directly  or  indirectly,  with  the  sales  to  the  Sugar  Trust. 


The  Great  Boon  of  "  Voluntary  Contract." 

Day,  as  we  have  said,  succeeded  Justice  Shiras.  To  give 
a  concrete  illustration  of  the  type  and  circumstances  of  de- 
cisions of  the  Supreme  Court  of  the  United  States  regarding 
injured  workers,  let  us  pick  out,  for  example,  a  decision  written 
by  Shiras  just  before  he  left  the  Bench. 

Injured  by  a  collision,  William  Voight,  an  employe  of  the 
United  States  Express  Company  on  the  Baltimore  and  Ohio 
Railroad,  sued  for  damages.  In  the  lower  courts  he  was  suc- 
cessful. On  the  ground  that  when  he  obtained  his  job  Voight 
had  signed  a  contract  releasing  the  railroad  company  from 
liability,  the  company  appealed.  Shiras  held  that  Voight 
was  not  compelled  to  enter  into  such  a  contract,  but  did  it 
voluntarily,  secured  work  by  means  of  it,  and  that  such  a 
contract  did  not  contravene  public  policy.  Only  Harlan  dis- 
sented.71 

Shiras  had  been  counsel  for  the  Baltimore  and  Ohio  Rail- 
road branch  at  Pittsburgh,  and  he  well  knew  that  no  man  could 
get  work  unless  he  signed  such  a  contract.  Here,  in  brief, 
was  the  Supreme  Court  of  the  United  States  upholding  the 
power  of  a  corporation  to  force  illegal  contracts  from  men 
seeking  work,  or  else  consign  them  and  their  families  to  hunger 
and  destitution.  It  gave  the  corporation  the  right  to  say  to  a 
worker :  "  Sign  this  contract,  or  starve ;  "  and  then  after  the 
worker  had  been  injured,  threw  him  out  of  court,  denying  him 
the  paltry  damages  sued  for,  caring  nothing  what  became  of 
him  or  his  family.  Day  was,  indeed,  a  worthy  successor  of 
Shiras. 

71  Case  of  B.  and  O.  R.  R.  vs.  Voight,  176  U.  S.  Reports,  498. 


658  HISTORY  OF  THE  ^UPREME  COURT 

Justice  Moody  Enters. 

The  next  Associate  Justice  appointed  was  William  H. 
Moody  of  Massachusetts;  he  took  his  seat  on  December  17, 
1906,  succeeding  Brown,  retired.  Born  in  1853,  Moody,  too, 
was  a  Harvard  graduate ;  for  sixteen  years  before  his  appoint- 
ment to  the  Supreme  Court  he  had  held  a  succession  of  public 
offices.  Associating  with  the  Lodge  political  machine,  he  be- 
came district  attorney  for  the  eastern  district  of  Massachu- 
setts in  1890.  Five  years  were  spent  in  that  office,  and  in 
1895  ne  was  elected  to  Congress.  He  was  appointed  Secretary 
of  War  on  May  i,  1902,  and  on  July  i,  1904,  succeeded  Knox 
as  Attorney-General  of  the  United  States.  Like  Knox  (Steel 
Trust  attorney),  Moody  made  a  frantic  appearance  of  seeking 
the  dissolution  of  the  trusts,  but  it  was  merely  an  illusory  pro- 
ceeding quickly  degenerating  into  a  travesty. 

Moody  was  a  follower  and  close  friend  of  Senator  Henry 
Cabot  Lodge,  who  has  been  viewed  with  sincere  and  unbroken 
approval  by  the  great  corporate  interests  in  Massachusetts. 
Lacking  the  support  of  these  interests,  no  man  could  expect  to 
be  sent  to  the  United  States  Senate,  or  elected  or  appointed  to 
any  other  public  office.  Even  the  much-bepraised  Hoar, 
Lodge's  predecessor,  had  been  attorney  for  railroads  and  for 
the  most  powerful  industrial  concerns.72  Lodge's  associate 
United  States  Senator  from  Massachusetts  was  Murray  Crane, 
an  extensive  manufacturer,  who  as  Governor  of  that  State  had 
recommended  and  ratified  legislation  by  which  the  Boston  and 
Albany  Railroad  was  turned  over  to  the  Vanderbilts  under  a 
perpetual  lease.  This  railroad  was  built  largely  by  the  State, 
but  private  capitalists  owned  part  of  the  stock.  Among  the 
large  stockholders  was  Murray  Crane,  but  when  elected  Gov- 
ernor he  had  virtuously  transferred  his  holdings  to  his  brother 

72  Hoar  represented  the  Worcester  and  Nashua  Railroad  Company, 
the  Amoskeag  Manufacturing  Company,  etc. — 131  Mass.  Reports,  495 : 
V  Supreme  Court  Reporter,  441,  etc. 


UNDER   CHIEF   JUSTICE   FULLER  659 

and  partner,  Zenas  Crane.73  The  methods  by  which  the 
State's  interests  were  surrendered  in  this  transaction  and  also 
in  the  selling  of  the  State's  stock  in  the  Fitchburg  Railway  to 
the  Boston  and  Maine  Railroad,  caused  a  blare  of  public 
scandal.74 

At  no  time  could  Senator  Lodge  be  accused  of  violating  his 
signal  fidelity  to  the  interests  of  the  Massachusetts  manufac- 
turers and  railroad  corporations.  Unvaryingly  he  advocated 
measures  for  their  benefit,  nor  did  he  suffer  himself  to  prove 
false  to  his  class  interests  by  supporting  working-class  legisla- 
tion. In  the  Massachusetts  factories  an  immense  number  of 
child  laborers  have  been  employed  under  peculiarly  degener- 
ating conditions,  but  neither  Lodge  nor  Holmes  nor  Moody 
ever  even  whispered  a  protest.  Foremost  of  all  corporations 
controlling  the  politics  of  Massachusetts  are  the  Boston  and 
Maine  Railroad  and  the  New  York,  New  Haven  and  Hartford 
Railroad ;  they  have  invested  themselves  with  the  practical 
veto  power  over  nominations  or  appointments  to  public  office. 

It  was  Lodge,  the  personal   friend  of  Roosevelt,  and  his 

73  In  the  list  compiled  by  the  Interstate  Commerce  Commission  of 
the  ten  largest  stockholders  of  railroads,  in  1908-1909,  Zenas  Crane 
appeared  as  the  owner  of  150,000  shares  of  common,  and  10,000  shares 
of  preferred,  stock  of  the  Chicago,  St.  Paul,  Minneapolis  and  Omaha 
Railroad. 

71  Lucius  Tuttle,  President  of  the  Boston  and  Maine  Railroad,  domi- 
nated New  England  politics.  That  this  railroad  corrupted  legislatures 
is  a  matter  of  record.  We  will  give  an  excerpt  from  a  speech  made 
by  former  United  States  Senator  Chandler,  at  Laconia,  N.  H.,  on 
August  17,  1910;  what  he  said  of  New  Hampshire  was  equally  true  of 
Massachusetts,  so  far  as  the  railroad  was  concerned : 

"  Railroad  passes  and  railroad  money  dominate  the  State,  and  the 
governor,  councillors,  senators  and  representatives  are  the  mere  agents 
in  their  offices  of  the  two  great  railroads. 

"  It  may  be  said  truthfully  that  nearly  all  the  lawyers  in  the  State 
are  influenced  by  one  or  the  other  railroad  companies,  either  by  annual 
passes  alone,  or  by  such  passes  and  money. 

"  New  Hampshire  has  been  one  of  the  greatest  victims  of  corporation 
rule,  mainly  governed  in  its  industrial,  political  and  government  career 
by  the  Boston  and  Maine  Railroad.  There  has  been  added  to  this  in- 
fluence the  Amoskeag  Manufacturing  Company  of  Manchester,  which, 
when  it  has  not  been  adjusting  its  disputes  with  the  railroads,  has  been 
joining  with  the  railroads  in  taking  possession  of  the  State  government." 


66O  HISTORY   OF   THE    SUPREME   COURT 

mouthpiece  in  the  Senate,  who  induced  Roosevelt  to  appoint 
Moody  Attorney-General,  and  it  was  Lodge  who,  when  Moody 
retired  from  the  Supreme  Court  of  the  United  States,  in  1910, 
did  Moody  the  friendly  service  of  rolling  a  bill  through  Con- 
gress granting  Moody  a  pension  of  $12,500  a  year.  When, 
later,  in  the  same  year,  Lodge's  campaign  for  reelection  met 
with  vigorous  opposition,  Moody  displayed  his  gratitude  by 
writing  a  letter  to  the  members  of  the  Massachusetts  Legisla- 
ture urging  them  to  reelect  Lodge.  ".  .  .  We  have,  in  the 
person  of  Senator  Lodge,"  Moody  wrote,  "  one  of  the  best 
equipped  men  in  public  life;  in  fact,  I  think  he  is  the  most 
competent  legislator  in  the  country.  .  .  ."  ™ 

We  shall  now  proceed  to  consider  in  aggregate  some  of  the 
more  important  of  the  mass  of  decisions  of  the  Supreme  Court 
of  the  United  States  during  this  period.  It  will  be  under- 
stood that  some  of  these  decisions  were  handed  down  before 
the  different  times  when  Holmes  and  Moody  went  on  the 
Bench,  but  their  participation  is  included  in  the  various  later 
decisions. 

75  Ostensibly  a  letter  from  a  "  constituent  to  his  representatives 
solely,"  this  letter  was  immediately  published  in  every  Boston  news- 
paper and  in  the  press  generally  throughout  the  State. 


CHAPTER  XVI 

THE   SUPREME   COURT    UNDER    CHIEF  JUSTICE   FULLER 
(CONTINUED) 

Oblivious  to  criticisms  and  the  misunderstandings,  the  Su- 
preme Court  proved  that  in  one  essential  respect  it  was  not  the 
reactionary  institution  that  in  certain  quarters  it  was  charged 
with  being.  Its  critics  were  accustomed  to  declaim  against  it 
as  a  small  oligarchy  of  doddering,  obdurate  old  men,  blind 
or  at  least  insensible  to  all  of  the  signs  and  demands  of  prog- 
ress, and  determined  to  impede,  thwart  or  annul  every  mani- 
festation of  progress.  This  criticism,  at  once  amusing  and 
fallacious,  is  still  current. 


The  Court's  Ultra-Progressiveness. 

In  reality  the  Supreme  Court  in  the  specific  point  in  ques- 
tion, was  the  most  alert,  adaptable,  ultra-progressive  institu- 
tion in  the  United  States.  Frosted  with  heavy  years  most 
of  its  members  truly  were ;  but  in  depth  of  mind,  in  clarity  of 
vision  and  grasp  of  affairs  no  body  of  men  were  less  archaic 
or  (in  the  particular  referred  to)  more  keenly  responsive  to 
the  demands  of  altering  conditions  as  required  by  the  domi- 
nant division  of  the  ruling  class.  This  was  their  one  re- 
markable ability  —  an  ability  to  be  estimated  and  appreciated 
at  its  high  historic  worth. 

Bred  under  laws  applying  to  an  obsolete,  bygone  economic 
period,  the  Supreme  Court  majority  nevertheless  refused  to  al- 
low that  stultifying  code  of  laws  to  stand  in  the  way  of  indus- 
trial evolution.  They  declined  to  interfere  with  the  orderly 
transition  of  society  from  an  older,  outworn,  crumbling  stage 

661 


662  HISTORY    OF    THE    SUPREME    COURT 

to  a  newer,  more  modern  era.  At  a  time  when  legislatures 
and  Congress  were  fatuously  bent  upon  seeking  to  revivify 
historic  anachronisms,  the  Supreme  Court  of  the  United  States 
was  the  one  body  that  thrust  those  reactionary  laws  aside  and 
facilitated  industrial  progress. 

The  age  of  unrestricted  competition  had  passed,  and  the 
age  of  huge  combinations  of  capitalists  in  concentrated  cor- 
porations had  supplanted  it.  Anarchy  in  production  had  been 
to  a  large  extent  superceded  by  systematic  trust  control.  But 
many  statutes,  relics  of  the  era  when  the  still  powerful  middle 
class  was  vainly  and  confusedly  trying  to  stop  the  growth  of 
the  trusts,  remained  as  unrepealed  legislation. 

Agitation  to  enforce  these  anti-trust  laws  was  continually 
carried  on,  although  in  a  declining  ratio  as  the  middle-class 
organization  grew  less  influential.  Two  concrete  facts,  how- 
ever, obstinately  protruded,  conflicting  side  by  side :  One  fact 
was  that  the  trusts  were  growing  increasingly  more  powerful. 
That  the  laws,  markedly  so  the  Federal  anti-trust  act,  forbade 
the  existence  of  those  trusts,  was  the  other  fact. 

But  one  of  these  was  only  the  semblance  of  a  fact,  or  rather 
the  shadow  of  what  had  been  a  fact.  Unrestrained  compe- 
tition in  industry,  with  its  warfares  and  its  many  deficiencies, 
was  largely  become  a  memory.  It  had  ceased  to  be  a  fact,  yet 
in  the  lifeless,  bookish  thing  called  statute  law  it  was  believed 
that  it  could  be  resurrected.  The  skeleton  alone  remained ; 
breath  and  spirit  had  departed.  Combination,  however,  was 
a  living  fact,  and  a  mighty  one ;  if  anyone  doubted  its  obvious 
economic  superiority  over  its  predecessor,  competition,  he  at 
least  could  not  but  be  impressed  by  its  immense  energy,  sys- 
tem, power  and  resources. 

The  Existing  Class  War. 

Three  great  groups  now  developed  from  the  conflict  within 
society.  One  of  these  was  that  of  the  trust  magnates,  with 


UNDER    CHIEF   JUSTICE    FULLER  663 

an  interassociation  in  ownership  of  transportation  systems,  in- 
dustries, mines  and  other  resources.  The  wealth  of  this  group 
was,  computed  by  usual  reckonings,  almost  illimitable ;  its 
power  stupendous.  But  its  numerical  strength  was  small,  and 
diminishing  as  its  individual  and  collective  wealth  increased, 
for  the  big  trust  magnate  warred  upon  the  small  not  less  than 
the  trust  upon  the  petty  manufacturer. 

The  second  group  was  that  of  the  middle  class.  Many  of 
the  former  strongest  factors  in  this  class  —  the  small  manu- 
facturers, jobbers,  etc., —  had  either  become  absorbed  in  the 
trusts  or  had  been  driven  from  business.  If  the  inroads  of  the 
trusts  had  ended  here,  the  middle-class  agitation  would  largely 
have  died  away  from  sheer  inanition.  Connected,  however, 
with  the  middle  class  was  a  huge  number  of  retail  dealers.  As 
the  profits  of  the  trusts  piled  up,  the  magnates  necessarily  had 
to  look  about  for  new  channels  of  investment.  The  only  re- 
maining field,  therefore,  was  the  retail  trade.  In  this,  some  of 
the  trusts,  notably  the  Tobacco  Trust,  began  to  establish  their 
own  stores,  selling  direct  to  the  consumer.  Naturally,  this 
new  move  filled  the  shopkeepers  everywhere  with  the  most  vio- 
lent alarm,  and  gave  the  anti-trust  agitation  a  new  impetus. 

Aligned  with  the  middle  class  were  the  agricultural  element 
and  a  large  section  of  uninformed  workers.  Altogether,  the 
forces  massed  in  the  array  opposed  to  the  trusts  were  numer- 
ically great,  and  formed  an  overpowering  political  majority. 
This  explains  why  legislators,  themselves  often  tools  of  trusts, 
were  unwilling  to  risk  their  own  political  extinction  by  repeal- 
ing laws  aimed  at  the  trusts. 

The  third  group  was  that  of  organized  labor.  On  the  po- 
litical field  its  views  and  sentiments  and  actions  at  the  time 
were  similar  to  those  of  the  middle  class,  although  the  two 
classes  had  nothing  in  common.  Only  that  fragment  of  the 
workers  comprised  in  the  Socialist  ranks  was  then  clear  sighted 
enough  to  understand  that  the  trusts  were  a  natural  outgrowth 
of  evolutionary  conditions. 


664  HISTORY    OF    THE    SUPREME   COURT 

But  between  trusts  and  labor  unions  a  deadly  conflict  was 
in  progress.  With  their  enormous  issues  of  watered  stock,  the 
trusts  sought  to  augment  their  profits  in  every  way  in  order 
to  give  that  stock  value.  Added  to  this  fact  was  the  ever-pres- 
ent principle  of  the  employer  aiming  to  buy  his  labor  as  cheap 
as  possible.  The  labor  unions  were  an  obstacle  to  this  pro- 
gramme of  merciless  exploitation.  On  the  other  hand,  the 
reverse  principle  operated,  the  laborer  trying  to  get  the  utmost 
for  his  labor  power.  While  maintaining  their  right  to  carry 
on  industry  and  transportation  in  modern,  compact,  concen- 
trated corporations,  the  trusts  denied  the  workers'  right  of 
organizing  along  modern  lines.  The  trusts  aimed  at  nothing 
less  than  the  destruction  of  the  labor  unions. 


An  Absolute  Institution. 

With  this  preliminary,  we  can  now  begin  to  get  a  clear  con- 
ception of  the  fundamental  meaning  of  the  edicts  of  the  Su- 
preme Court  of  the  United  States.  If  the  legislators  were 
afraid  to  recognize  inevitable  changes  and  enact  laws  in  con- 
formity with  them,  the  Supreme  Court -was  not.  It  had  no 
purblind  constituents  to  appease,  nor  did  it  have  to  make  ex- 
planations to  anyone.  It  was,  as  its  title  implied,  supreme, 
and  could  decree  law  as  it  pleased.  At  the  proper  time  it 
could  even,  as  some  of  its  apparent  anti-trust  decisions  indi- 
cated, serve  the  ulterior  purposes  of  the  magnates  in  subtler 
forms.  It  could  put  trusts  to  the  trouble  of  nominally  dis- 
solving so  that  a  cry  of  "  disturbed  business  conditions  "  could 
be  set  up,  and  thus  give  legislators  a  pretext  to  pass  laws  legal- 
izing trusts. 

As  for  the  labor  unions  the  Supreme  Court  did  not  have  to 
depend  upon  their  favor  or  votes ;  the  Supreme  Court  could 
strike  at  them  without  fear  of  retaliation ;  in  truth,  that  ex- 
alted tribunal  held  workers  in  supreme  contempt.  For  good 
reason,  The  trust  magnates  saw  to  it  that  every  important  post 


UNDER   CHIEF   JUSTICE   FULLER  665 

was  filled  by  representatives  of  their  own  class,  but  the  bulk 
of  the  voters  were  deluded  into  voting  their  avowed  enemies 
into  office  year  after  year.  It  was  their  votes  that  put  capital- 
ist Presidents  in  the  White  House,  and  it  was  those  Presidents 
who  appointed  Supreme  Court  Justices.  Not  a  member  of 
the  Supreme  Court  was  appointed  unless  his  views  and  asso- 
ciations were  known  and  canvassed  in  advance,  and  his  record 
closely  scanned  by  the  great  capitalist  interests. 

The  Sugar  Trust  had  been,  as  we  have  seen,  given  a  bill  of 
immunity,  and  at  about  the  same  time  the  Supreme  Court  had 
sent  Debs  to  jail.  A  series  of  decisions  followed  which  fur- 
ther allowed  the  exemption  of  the  trusts.  True,  a  few  de- 
cisions were  handed  over  seemingly  antagonistic  to  certain 
trusts  and  combinations.  But  in  practical  application  they  had 
no  such  effect.  At  the  same  time,  other  decisions  of  the  Su- 
preme Court  struck  hard  at  labor-union  leaders  and  labor- 
union  measures  and  tactics,  while  permitting  railroad  corpora- 
tions to  pursue  toward  workers  what  had  hitherto  been  held  to 
be  unfair  and  illegal  methods.  We  shall  give  the  substance 
of  the  more  important  of  these  decisions. 

Anti-Trust  Measures  Extinguished. 

Anti-trust  acts  in  thirteen  States  were  wiped  off  the  statute 
books  by  the  decision  of  the  Supreme  Court  in  the'  case  of 
Connolly  vs.  the  Union  Sewer  Pipe  Company,  on  March  10, 
1902.  The  action  involved  the  constitutionality  of  an  Illinois 
statute;  Harlan  delivered  the  court's  opinion  pronouncing  the 
law  void ;  McKenna  dissented.1 

Shortly  after  this  the  Supreme  Court  expounded  another  de- 
cision in  which  it  revealed  that  it  was  fully  alive  to  the  require- 
ments of  industrial  conditions.  The  case  was  that  of  the  Car- 
negie Steel  Company  vs.  the  Cambria  Iron  Company.  The 
suit  arose  over  a  contention  as  to  whether  Carnegie  was  en- 

1 184  U.  S.  Reports,  540. 


666  HISTORY   OF   THE    SUPREME    COURT 

titled  to  a  valuable  patent  (the  Jones  invention)  for  manufac- 
turing steel.  The  Supreme  Court  decided  for  Carnegie,  but 
Justices  White,  Fuller,  Harlan  and  Brewer  concurred  in  a 
dissenting  opinion  in  which  they  concluded  with  the  significant 
statement  that  by  thus  being  allowed  to  exact  tribute  from 
the  steel  and  iron  making  industry,  Carnegie  was  in  a  position 
to  hinder  the  operations  of  other  steel  makers  from  keeping 
"  pace  with  the  natural  evolution  of  modern  industrial  develop- 
ment." 2 

The  Carnegie  Company  was  a  main  part  of  the  Steel  Trust, 
and  one  of  its  attorneys  in  the  foregoing  case"  was  Philander 
C.  Knox,  of  Pittsburg.  Knox  had  been  the  counsel  for  the 
Carnegie  Company.  Back  in  1894  he  had  pleaded  for  that 
company  when  it  was  proved  that  the  company,  in  its  contracts 
to  supply  armor  plate  for  warships  had  "  perpetrated  mani- 
fold frauds,  the  natural  tendency  of  which  was  to  palm  off 
upon  the  Government  an  inferior  armor  whose  inferiority 
might  perchance  appear  only  in  the  shock  of  battle  and  with 
incalculable  damage  to  the  country."  3  According  to  the  re- 
luctant testimony  of  A.  J.  Cassatt,  president  of  the  Pennsylva- 
nia Railroad,  the  Carnegie  Company  had  been  continuously  re- 
ceiving illegal  rebates  on  a  vast  scale  from  the  railroads.4 

Knox  had  also  been  attorney  for  the  Pittsburg,  Bessemer 
and  Lake  Erie  Railroad,  the  Pittsburg,  Fort  Wayne  and  Chi- 
cago Railroad,  the  Pittsburg  and  Birmingham  Traction  Com- 
pany, and  for  other  powerful  corporate  clients.  From  the 
Carnegie  Company  alone  Knox  was  reputed  to  have  received 
a  retainer  of  $50,000  a  year.  When  a  Congressional  Commit- 
tee exposed  the  armor-plate  frauds,  Knox,  as  we  have  said, 
proved  his  skill  by  diverting  all  attempts  at  prosecution. 

2  185  U.  S.  Reports,  409.     My  italics. — G.  M. 

3  House  Report  No.  1468,  Fifty-third  Congress,  Second  Session.     The 
revelations  of  the  armor-plate  frauds  produced  a  deep  sensation  at  this 
time. 

4  By  receiving  rebates  from  railroads,  large  corporations  and  trusts 
were  easily  able  to  undersell  and  undermine  competitors.     Rebating  was 
illegal  and  punishable. 


UNDER   CHIEF   JUSTICE   FULLER  667 

The  nucleus  of  the  Steel  Trust,  formed  in  1901,  was  the  Car- 
negie Company,  and  the  two  successive  Presidents  of  the  Steel 
Trust  were  Schwab  and  Corey,  who,  with  Cline,  had  been  su- 
perintendents of  the  Carnegie, Plant  in  1894.  Of  Cline,  Corey 
and  Schwab  the  Congressional  investigating  committee  had 
reported,  ".  .  .  The  unblushing  character  of  the  frauds  to 
which  these  men  have  been  parties  and  the  disregard  for  truth 
and  honesty  which  they  have  shown  in  testifying  before  your 
committee,  render  them  unworthy  of  credence."  5 

The  Eminent  Mr.  Knox. 

Andrew  Carnegie,  then  the  principal  stockholder  of  the  Car- 
negie Steel  Company,  admitted  in  his  testimony  before  the 
(Stanley)  House  Investigating  Committee,  on  January  n, 
1912,  that,  in  1901,  he  had  written  a  letter  to  President  Mc- 
Kinley  recommending  Knox's  appointment  as  Attorney-Gen- 
eral of  the  United  States.  Carnegie  further  testified  that 
Knox  had  been  one  of  the  attorneys  of  the  Carnegie  Steel 
Company  from  1890  (the  date  of  the  passage  of  the  Sherman 
anti-trust  law)  to  the  year  1901,  and  that  Judge  Reed,  Knox's 
law  partner,  had  become  a  member  of  the  Directorate  of  the 
Steel  Trust,  formed  in  1901. 

These  were  some  of  the  antecedents  of  Knox,  who,  in  1901, 
became  Attorney-General  of  the  United  States.  On  the  even- 
ing of  March  22,  1901,  J.  Pierpont  Morgan,  the  organizer  and 
head  of  the  Steel  Trust,  called  upon  President  McKinley  at  the 
White  House.  The  next  morning  McKinley  announced  that 
the  Attorney-General  would  be  Knox.  Petitioning  the  Senate 
judiciary  committee  not  to  confirm  the  appointment,  the  Anti- 
Trust  League  pertinently  inquired : 

"  Is  it  proper  for  a  lawyer  to  appear  against  his  former  cli- 
ents? Can  a  lawyer  willing  to  appear  against  his  former 
clients  be  trusted  to  prosecute  them  if  guilty?  The  charges 

<*  House  Report  No.  1468,  Fifty-third  Congress,  Second  Session. 


668  HISTORY   OF   THE    SUPREME    COURT 

we  have  filed  refer  not  only  to  his  dereliction  of  duty  in  the 
cases  we  have  filed  with  him,  but  also  bear  upon  his  admit- 
ted intimate  relations  and  his  collusion  with  the  criminal  prac- 
tices of  the  armor-plate  trust  which,  we  are  informed,  robbed 
the  Government  of  millions  of  dollars  during  the  time  Mr. 
Knox  was  their  associate  and  adviser." 

Having  thus  shed  illumination  on  Knox's  career,  and  the 
great  corporate  interests  he  had  represented,  we  shall  be  in  a 
better  position  to  understand  why  it  was  that  he,  as  Attorney- 
General,  brought  suit  to  have  the  Northern  Securities  Company 
declared  illegal. 

The  Northern  Securities  Case. 

In  1874,  the  Minnesota  Legislature  had  passed  an  act  pro- 
hibiting the  consolidation  of  parallel  or  competing  railroads. 
In  1901,  James  J.  Hill,  the  controlling  magnate  of  the  Great 
Northern  Railroad  and  part  owner  of  the  Northern  Pacific 
Railroad,  set  out  to  get  control  of  the  Chicago,  Burlington  and 
Quincy  Railroad.  In  retaliation,  competing  magnates  began 
to  buy  Northern  Pacific  Railroad  stock  which  would  give  them 
a  voice  in  one  of  Hill's  own  railroads. 

A  great  warfare  in  the  stock  market  resulted.  The  outcome 
of  this  conflict  among  the  magnates  was  a  merging  of  interests. 
Morgan's  idea  of  a  holding  company  with  $400,000,000  capi- 
tal to  combine  the  interests  of  both  the  Great  Northern  and  the 
Northern  Pacific  railroads  was  carried  out.  The  new  corpora- 
tion was  called  the  Northern  Securities  Company. 

It  is  not  possible  to  ascertain  the  secret  antagonisms  or 
other  underlying  purposes  then  at  work  as  the  reasons  for  cer- 
tain moves.  Between  Morgan's  Steel  Trust  and  Hill's  inter- 
ests there  was  a  direct  connection  of  large  magnitude.  Hill 
owned  iron  ore  deposits  of  vast  value  near  Lake  Superior; 
testifying  subsequently  before  the  (Stanley)  House  Investi- 
gating Committee,  on  February  12,  1912,  Hill  said  that  he 


UNDER   CHIEF   JUSTICE   FULLER  669 

had  bought  these  properties  for  $4,050,000.  He  had  leased 
69,000  acres  of  the  iron  ore  deposits  to  the  Steel  Trust  which 
thus  far  —  by  the  year  1912  —  had  worked  only  39,000  acres. 
In  the  remaining  30,000  acres  which  will  revert  to  Hill  when 
the  Steel  Trust  surrenders  its  lease  (in  1913),  there  were,  Hill 
testified,  500,000,000  tons  of  ore  left,  which  he  valued  at- $750,- 
000,000.  We  state  these  facts  merely  as  facts ;  what  relevancy 
they  had  to  the  Northern  Securities  action  we  do  not  know. 

President  Roosevelt  ordered  Knox  to  proceed  against  the 
Northern  Securities  Company.  Knox  did  so,  but  it  was  made  a 
civil  proceeding.  The  question  frequently  asked  in  observant 
circles  was  this :  Did  certain  magnates  have  a  secret  motive  for 
breaking  up  the  Northern  Securities  Company?  On  March 
14,  1904,  the  Supreme  Court  of  the  United  States  declared  the 
corporation  an  illegal  one  in  restraint  of  commerce  and  ordered 
its  dissolution.0 

Illegal  it  was  thus  pronounced ;  it  followed,  therefore,  that 
under  the  law  those  guilty  could  have  been  criminally  prose- 
cuted and  sent  to  prison.  Debs  had  been  thrown  in  prison  on 
an  extraneous,  manufactured  charge.  But  a  labor  leader  was 
on  a  vastly  different  plane  in  the  application  of  law  from  a  mag- 
nate, or  a  galaxy  of  magnates.  Not  the  slightest  attempt  was 
made  to  prefer  criminal  action  against  the  organizers  of  the 
Northern  Securities  Company.  Against  this  fact  Justice 

0  Northern  Securities   Company  vs.  U.   S.,   193  U.   S.   Reports,   197. 

As  illustrating  the  possibilities  of  secret  bargaining,  the  statements 
of  Wharton  Barker,  a  Philadelphia  banker,  conservative  political  econo- 
mist, and  at  one  time  a  middle-class  ("middle  of  .the  road")  candidate 
for  the  Presidency,  may  here  be  referred  to.  Barker  testified  before  the 
United  States  Senate  Committee  on  Interstate  Commerce,  on  November 
29,  1911,  that  he  had  been  told  by  one  of  the  Wall  Street  banking  mag- 
nates that  in  the  campaign  of  1904,  when  Roosevelt  was  a  candidate 
for  the  Presidency,  that  the  Wall  Street  interests  had  made  a  bargain 
with  Roosevelt  on  the  railroad  question.  "He  is  to  'holler'  all  he 
wants  to,"  the  magnate  was  quoted  as  saying,  "and  by  and  by  —  not 
immediately,  but  in  due  time  —  a  railroad  bill  is  to  be  recommended  by 
the  President," —  which  was  to  abolish  rebates,  free  passes,  legalize  pool- 
ing, and  permit  an  increase  of  capital  stock.  Roosevelt  ridiculed  this 
testimony. 


670  HISTORY   OF   THE    SUPREME   COURT 

Holmes  protested  in  his  dissenting  opinion  when  he  said :  "  It 
is  vain  to  insist  that  this  is  not  a  criminal  proceeding.  The 
words  cannot  be  read  one  way  in  a  suit  which  is  to  end  in  fine 
and  imprisonment,  and  another  in  one  which  seeks  an  injunc- 
tion. I  am  no  friend  of  artificial  interpretations.  ...  So 
I  say  we  must  read  the  words  before  us  as  if  the  question  were 
whether  two  small  exporting  grocers  should  go  to  jail." 


Prisons  for  the  Poor  Only. 

Here,  indeed,  was  a  vital  and  striking  feature  of  the  Su- 
preme Court's  decisions,  even  when  those  decisions  were  nom- 
inally adverse  to  the  trusts.  The  prisons  throughout  the  coun- 
try were  filled  with  convicts  whose  only  real  crime  was  that 
they  were  poor.  Poverty,  unlike  wealth,  commanded  no  re- 
spect from  the  courts.7  For  the  slightest  violation  of  law,  the 
helpless  and  uninfluential  were  consigned  to  prison,  more  often 
than  not  for  long  terms.  But  not  a  single  railroad  director, 
nor  a  solitary  trust  magnate  has  ever  been  condemned  to  prison 
for  violating  the  anti-trust  laws. 

Given  the  alternative  of  inflicting  fine  and  imprisonment  or. 
both,  the  courts  have  done  nothing  more  than  sentence  the 
trust  offender  to  a  fine.  This  has  been  a  recognized  travesty ; 
to  a  corporation  extorting  hundreds  of  millions  of  dollars  in 
profits,  a  fine  of  a  few  thousands  is  ludicrous.  Moreover,  the 

~  The  truth  of  this  generalization  is  so  obvious  and  so  clearly  sustained 
by  a  vast  multitude  of  examples,  that  it  requires  no  elucidation  here. 
Speaking  on  this  point,  United  States  District  Attorney  Henry  A.  Wise, 
in  an  address  at  New  York,  on  November  14,  .1911,  told  how  rich 
smugglers  and  thieves  had  been  let  off  with  a  fine  by  the  courts,  and 
poor  offenders  sent  to  prison.  "  But,"  he  observed,  "  it  has  been  difficult 
to  send  the  rich  to  jail.  The  judge  evidently  thinks  that  they  should 
have  plenty  of  warning,  and  in  case  after  case  of  this  kind,  I  have 
howled  in  vain  for  jail  sentences."  Among  other  examples,  Wise  in- 
stanced the  case  of  the  Sugar  Trust.  It  had  defrauded  the  Government 
of  vast  sums,  yet  no  one  had  been  inculpated  except  "  dead  men  and 
$15  a  week  clerks."  After  being  forced  to  make  certain  restitution  to 
the  Government,  the  Sugar  Trust  had  recouped  itself  by  raising  the 
price  of  sugar. 


UNDER   CHIEF   JUSTICE   FULLER 

amounts  of  the  fines  can  always  be  abundantly  recouped  from 
the  reduced  wages  of  the  workers  or  from  consumers  in  added 
cost  of  necessaries.  Even  in  criminal  matters,  apart  from  con- 
spiracies to  restrain  commerce,  this  is  what  happened,  accord- 
ing to  Attorney-General  Moody : 

"  But  where  the  accusation  is  a  grave  one,  and  the  accused 
has  abundant  means,  the  ingenuity  of  his  counsel  opens  many 
avenues  of  appeal  which  ultimately  reach  the  Supreme  Court, 
raising  there  a  constant  succession  of  trivial  questions  with 
consequent  delays  which  may  retard  or  even  defeat  the  pur- 
poses of  justice."  8 

The  Beef  Trust  Ignores  the  Supreme  Court. 

In  the  Supreme  Court's  pretended  application  of  anti-trust 
laws  the  soberest  judgment  can  direct  nothing  else  than  a  pro- 
longed farce,  perhaps  relieved  by  the  stern  tragedy  of  fining 
multimillionaires  a  few  thousand  dollars.  In  the  Beef  Trust 
case,  the  Supreme  Court,  on  January  30,  1905,  affirmed  an  in- 
junction restraining  Swift  and  other  packers  from  carrying  on 
a  conspiracy  of  combination.9  No  doubt  the  packers  have 
treasured  the  writ  as  a  curious  yet  harmless  souvenir ;  the  in- 
junction has  become  faded,  but  the  Beef  Trust  has  been  joy- 
ously pursuing  the  same  old  extortionate  line  of  business,  as  is 
proved  by 'more  actions  recently  brought  against  it  by  the  Gov- 
ernment.10 

8  Annual  Report  of  the  U.  S.  Attorney-General  for  1905,  p.  6. 

0  Swift  vs.  U.  S.,  196  U.  S.  Reports.  375. 

10  On  May  19,  1902,  the  Government  began  an  action  against  the  Beef 
Trust.  The  packers  interposed  every  possible  legal  obstacle.  On  July 
i,  1905,  however,  the  Federal  Grand  Jury  of  Chicago  indicted  seventeen 
individuals  and  five  corporations.  In  1906,  Judge  Humphrey  gave  them 
immunity  because  they  had  testified  in  an  investigation  conducted  by 
the  Bureau  of  Corporations.  The  Government  continued  its  actions, 
and  there  were  more  years  of  law  delay.  Finally,  on  September  12, 
1910,  new  indictments  were  found  against  Armour,  Swift,  Morris  and 
other  packers.  Just  as  the  packers  were  about  to  be  put  on  trial,  in 
November,  1911,  they  raised  the  question  that  the  Sherman  anti-trust 
act  was  unconstitutional  and  they  secured  release  under  bonds  or  writs 


672  HISTORY   OF   THE   SUPREME   COURT 


Immunity  for  Trust  Magnates. 

Next  came  that  illuminating  series  of  decisions  in  the  Gen- 
eral Paper  Company  and  Tobacco  Trust  cases,  in  March,  1906. 
The  Supreme  Court  held  that  immunity  was  extended  to  trust 
magnates  who  testified,  but  declared  that  the  corporation  could 
be  punished. 

Quite  true,  this  decision  was  based  upon  an  act  passed  by 
Congress  in  1903,  the  object  of  which  was  clearly  to  give  im- 
munity to  trust  owners.11  With  alacrity  the  Supreme  Court 
accepted  this  law  as  constitutional ;  it  saw  nothing  null  and 
void  in  the  granting  of  exemptions  to  trust  heads  for  acts  for 
which  they  personally  were  responsible  and  from  which  they 
were  personally  benefiting  to  the  extent  of  billions  of  dollars. 
A  corporation  cannot  be  imprisoned ;  there  was  something 
screamingly  funny  in  the  solemn  mummery  of  inflicting  a  nom- 
inal fine  upon  a  corporation  capitalized  at  hundreds  of  millions 
of  dollars. 

Anti-Railroad  Acts  Effaced. 

The  power  of  the  States  to  pass  acts  fixing  railroad  rates 
was  swept  aside  by  a  Supreme  Court  decision,  of  March  22, 
1908,  which  declared  unconstitutional  railroad  rate  laws  passed 
by  the  States  of  Minnesota  and  North  Carolina.  Justice 

of  habeas  corpus.  After  nine  years'  delay,  the  Supreme  Court  of  the 
United  States  was  then  appealed  to  for  a  stay  of  their  trial.  On  De- 
cember 5,  1911,  this  application  was  refused. 

11  Section  3  of  the  Elkins  act  of  1903  gave  immunity  to  testifying 
witnesses.  All  that  a  magnate  had  to  do  was  to  give  some  slight  testi- 
mony, and  this  automatically  made  him  exempt  from  prosecution.  This 
bill,  as  is  seen  by  the  name,  was  introduced  and  pushed  by  the  notorious 
Stephen  B.  Elkins,  whose  fraudulent  claim  for  nearly  two  million  acres 
had  been  validated  by  the  Supreme  Court  and  who  was  himself  an 
extensive  railroad  magnate.  The  principle  was  the  same  as  if  a  burglar, 
highwayman  or  murderer  after  having  given  testimony  was  declared 
immune  from  prosecution.  And  it  may  be  said  that  what  with  their 
methods  of  oppression  of  wage  workers  and  extortions  the  railroad 
corporations  and  trusts  directly  and  indirectly  caused  an  immense  num- 
ber of  deaths. 


UNDER   CHIEF   JUSTICE   FULLER  673 

Peckham,  erstwhile  trustee  of  the  Mutual  Life  Insurance 
Company,  associate  of  numerous  magnates,  wrote  this  de- 
cision.1- Peckham  also  it  was  who  a  little  previously  wrote 
a  decision  declaring  unconstitutional  a  tax  levy  of  the  City 
of  Chicago  on  various  utility  corporations,13  and  it  was  Peck- 
ham,  too,  who  wrote  a  decision  relieving  the  Smelter  Trust 
of  a  tax  imposed  by  the  State  of  Colorado  on  its  capital  stock ; 
such  a  tax,  said  the  Supreme  Court,  was  unconstitutional.14 

Another  characteristic  decision  of  the  Supreme  Court  was 
that  on  December  15,  1909,  relieving  E.  H.  Harriman  from 
testifying  in  an  investigation  carried  on  by  the  Interstate  Com- 
merce Commission.15  This  was  the  period  when  Harriman, 
by  the  most  extensive  system  of  fraudulent  railroad  manipula- 
tion and  bribery,  was  acquiring  the  immense  fortune  that  he 
left.  The  Interstate  Commerce  Commission  was  thus  balked 
in  its  effort  to  learn  whether  Harriman  and  his  associates  had 
profited  by  sales  of  $120,000,000  of  stocks  to  the  Union  Pa- 
cific Railroad  of  which  they  were  directors. 

But  the  Commission  discovered  enough  to  report  in  detail 
upon  the  extent  of  the  frauds  and  how  those  frauds  were 
accomplished.  It  reported  that  in  the  manipulation  of  the 
Chicago  and  Alton  Railroad  alone,  nearly  $60,000,000  had 
been  stolen  by  Harriman  and  his  associates.  To  themselves, 
Harriman  and  partners  sold  $32,000,000  of  bonds  (represent- 
ing essentially  no  improvements,)  at  65.  Then  Harriman  in- 
duced the  New  York  Legislature  to  pass  an  act,  which  Gov- 
ernor Theodore  Roosevelt  signed,  authorizing  savings  banks 

12  209  U.  S.  Reports,  12.     Justice  Harlan  was  the  only  dissenter. 

13  Justices  Hclmes  and  Moody  dissented. 

14  Fuller,  Harlan,  Holmes  and  Moody  expressed  dissent. 

15  Harriman  vs.  Interstate  Commerce  Commission,  211  U.  S.  Reports, 
407.     Former  United  States  Senator  John  C.  Spooner  was  one  of  Har- 
riman's   counsel   in   this  action.    Justices   Day,   Harlan   and    McKenna 
dissented.     Moody,  not  having  heard  the  argument,  took  no  part  in  the 
decision.     Spooner  and  Joseph  H.  Choate  recently  appeared  (it  may  be 
observed  here)    for  the  Steamship  Trust  as  the  trust's  counsel  in  an 
action  brought  by  the  Government  in  the  United  States  Circuit  Court 
against  the  trust  as  an  illegal  combination. 


6/4  HISTORY   OF   THE    SUPREME    COURT 

to  invest  in  those  bonds.  The  price  of  the  bonds  was  then 
put  up  from  82^  to  94.  This  is  but  one  of  the  various 
methods  described  by  the  Interstate  Commerce  Commission.10 

By  its  decision  the  Supreme  Court  virtually  protected  Har- 
riman  at  the  identical  time  he  had  consummated  his  gigantic 
frauds  in  the  manipulation  of  the  Chicago  and  Alton,  the  Illi- 
nois Central,  the  Union  Pacific  and  the  Southern  and  •  the 
Central  Pacific  and  allied  railroads. 

The  Supreme  Court  had  declared  the  Northern  Securities 
Company  illegal.  Why  did  it  not  declare  the  Harriman  com- 
bination owning  parallel  lines  likewise  illegal  ?  The  Interstate 
Commerce  Commission  reported  that  the  Union  Pacific  and 
parallel  roads  were  held  by  the  Harriman  combination  and 
that  those  allied  railroads  had  in  force  a  specific  division  of 
freight  traffic,  so  that  each  should  get  a  certain  share.17  This 
meant  nothing  more  or  less  than  an  illegal  combination. 

An  "Illusory"  Decision. 

Still  another  interesting  decision  of  the  Supreme  Court 
was  that  in  the  "  Commodities  Clause  Cases."  The  Hepburn 
Act  of  1906  made  it  unlawful  for  any  railroad  company  to 
transport  products  of  any  mines  in  which  it  might  have  an 
interest,  direct  or  indirect.  This  law  was  aimed  at  the  Coal 
Trust;  it  was  notorious  that  the  coal-carrying  railroads  con- 
trolled the  coal  deposits.  The  Supreme  Court  did  not  pro- 
nounce this  law  unconstitutional,  but  it  decided  on  May  3, 
1909,  in  favor  of  the  railroads  on  this  ground :  That  the 
prohibition  did  not  apply  to  the  transportation  of  commodities 

16  For  the  full  facts  of  Harriman's  enormous  thefts,  see,  Report  No. 
943  of  the  Interstate  Commerce  Commission,  "  In  the  Matter  of  Con- 
solidations and  Combinations,"  etc.,  pp.  320-345.  The  Chicago  and 
Alton  transaction  is  described  in  pp.  340-345.  The  Commission  stated 
that  liabilities  of  $113,894,000  were  placed  upon  the  Chicago  and  Alton 
Railroad  which  had  originally  cost  approximately  $58,000,000.  Yet  not 
a  dollar  of  tangible  property  had  been  added. —  P.  342. 

"  Ibid.,  345-346. 


UNDER    CHIEF   JUSTICE    FULLER  675 

by  another  corporation  the  only  interest  of  which  lay  in  its 
ownership  of  capital  stock  of  coal-mining  corporations  "  at  the 
time  of  such  transportation."  18 

The  exalted  tribunal  chose  to  make  itself  the  subject  of 
general  criticism  by  ignoring  the  obvious  fact  that  the  way 
corporations  control  subsidiary  corporations  is  by  owning  a 
majority  of  their  capital  stock. 

Attorney-General  Wickersham  denounced  the  decision. 
"  If,"  he  wrote,  "  the  prohibition  of  the  statute  can  be  success- 
fully evaded  by  the  simple  device  of  transfer  of  ownership  of 
property  to  a  corporation,  all  of  whose  stock  shall  be  owned 
or  controlled  by  the  carrier,  Congress  should  amend  the  statute 
so  as  to  make  it  an  effectual,  and  not  merely  an  illusory,  pro- 
hibition, or  else  repeal  it."  19 

These  are  a  few  examples  of  decisions  selected  from  a  mass. 

On  the  other  hand,  the  Supreme  Court  of  the  United  States 
demonstrated  a  very  different  attitude  toward  cases  affecting 
the  rights  or  welfare  of  the  working  class. 

Shorter  Hours  Denied  Bakeshop  Workers. 

After  protracted  agitation,  the  labor  unions  finally  succeeded 
in  getting  the  New  York  Legislature  to  pass  an  act  making 
the  lot  of  bakeshop  workers  more  tolerable  by  prescribing  a 
ten-hour  law.  The  master  bakers  contested  this  law  up  to 
the  Supreme  Court  of  the  United  States.  That  Court,  on 
April  17,  1905,  declared  it  unconstitutional. 

On  what  ground?  The  Supreme  Court  held  it  unconstitu- 
tional on  the  ground  that  it  "  curtailed  liberty  of  contract." 
The  austere  tribunal  was  extremely  solicitous  about  the  right 

18  United  States  vs.  Delaware  &  Hudson  Company;  United  States  vs. 
Erie  Railroad  Company;  United  States  vs.  Central   Railroad  of  New 
Jersey ;  United  States  vs.  Delaware,  Lackawanna  &  Western  Railroad 
Company ;  United  States  vs.  Pennsylvania  Railroad  Company ;  United 
States  vs.  Lehigh  Valley  Railroad  Company. — 213  U.  S.,  366. 

19  Annual  Report  of  the  Attorney-General  for  1009:  p.  4.     * 


676  HISTORY   OF   THE    SUPREME    COURT 

of  the  worker  to  contract  to  work  as  long  as  he  "  pleased  "  in 
filthy,  torrid  cellars,  for  a  miserable  wage. 

Who,  it  may  be  inquired,  wrote  this  memorable  decision? 
Justice  Peckham.  To  Peckharn,  Chief  Justice  Fuller  and  the 
three  other  concurring  Justices  it  was  clear  that  "  the  freedom 
of  master  and  employe  to  contract  with  each  other  in  relation 
to  their  employment  and  in  defining  the  same,  cannot  be  pro- 
hibited or  interfered  with  without  violating  the  Federal  Con- 
stitution." 20  Now,  by  gracious  leave  of  the  Supreme  Court 
of  the  United  States,  the  boss  bakers  could  make  their  drudges 
sweat  in  underground  holes  eighteen  hours  of  the  twenty- 
four,  if  the  aforesaid  drudges,  driven  to  it  by  hunger,  would 
so  contract.  "  Liberty  of  contract  "  is  a  precious  phrase.  The 
Supreme  Court  had  thrown  its  protection  around  Harriman 
when,  after  accumulating  a  vast  fortune  by  fraud,  he  was  seek- 
ing to  protect  his  criminal  transactions  from  too  sharp  an 
official  inquiry.  But  it  refused  to  extend  the  slightest  pro- 
tection to  overworked  wage  earners  in  bakeshops.  Back  these 
were  driven  by  the  Supreme  Court's  edict  to  their  slavery, 
without  any  prospect  of  bettering  their  condition.21 

The  Fourteenth  Amendment 

The  most  noteworthy  feature,  however,  in  this  decision 
applying  to  bakeshop  workers  was  that  the  law  was  declared 
unconstitutional  under  the  Fourteenth  Amendment. 

Now  this  amendment  had  been  one  of  the  amendments 
adopted  to  secure  the  full  freedom  of  Negroes,  and  to  safe- 

20  Harlan,  White,  Day  and  Holmes  dissented  in  Lochner  vs.   New 
York.—  198  U.  S.  Reports,  45. 

21  Testifying  before  the  New  York  State  Factory  investigating  com- 
mission, on  November  14,  1911,  Miss  Frances  Perkins,  Deputy  Secretary 
of  the  Consumers'  League,  described  the  vile  conditions  of  many  bake- 
shops in  New  York  City  and  their  causes.     ".    .     .     There  was  every 
evidence  in  these  bakeries,"  Miss  Perkins  related,  "  that  employes  were 
allowed  to  sleep  in  the  workrooms,   some  on  cots,  and   some  on  the 
bread  trays,  even.     As  the  men  are  obliged  to  work  long  hours,  it  is 
only  natural  that  they  should   snatch  naps  whenever  possible,  and  a 
favorite  place  is  on  the  sacks  of  flour.    .    .    ." 


UNDER    CHIEF   JUSTICE   FULLER  677 

guard  them  from  the  oppressions  of  their  former  owners. 
Yet  for  more  than  twenty  years  the  Supreme  Court  of  the 
United  States,  in  deference  to  the  demands  of  the  ruling  class, 
had  consistently  emasculated  it.  The  Supreme  Court  had  re- 
fused to  define  what  the  rights  of  Negroes  were ; 22  it  had  held 
that  the  amendment  had  no  reference  to  the  conduct  of  indi- 
vidual to  individual  ;23  it  had  declined  to  give  the  Negroes  the 
protection  of  the  National  Government  when  it  decided  that 
"  sovereignty  for  the  protection  of  rights  of  life  and  personal 
liberty  within  the  States  rests  alone  with  the  States."  24  This 
meant  that  the  former  slave  States  were  empowered  to  abridge 
the  liberty  of  the  Negro  as  they  pleased. 

Other  decisions,  each  curtailing  the  rights  of  Negroes,  fol- 
lowed. On  the  ground  that  it  was  not  warranted  by  the 
amendment,  an  Act  of  Congress  giving  Negroes  the  right 
co-equally  with  whites  of  enjoying  inns,  public  conveyances, 
theaters  and  other  public  resorts,  was  declared  unconstitu- 
tional.25 The  right  of  suffrage  was  neither  granted  nor  pro- 
tected by  the  Amendment.20  A  State  could  curtail  the  right 
of  trial  by  jury  without  violating  the  amendment.27  It  was 
further  held  that  a  State  enactment  requiring  whites  and 
Negroes  to  ride  in  separate  railroad  cars  did  not  violate  the 
amendment.28 

22  Davidson  vs.  New  Orleans,  96  U.  S.  Reports,  194.     At  this  point, 
adopting  the  excellent  suggestion  of  Professor  W.  E.  B.  DuBois,  we  have 
purposely  capitalized  the  word  Negro.     "  Negro,"  says  Professor  Du- 
Bois, "  is  not  the  corresponding  term  to  the  word  white ;  black  is  that 
term  as  everybody  knows.     Negro  does  not  refer  to  color  simply,  be- 
cause there  are  black  people  who  are  not  Negroes.     Negro  is  the  desig- 
nation of  a  race  of  men  just  as  Indian,  Teutonic  or  Celtic.     Historically 
the  word  Negro  has  always  been  capitalized,  and  the  small  letter  was 
only  used  during  the  latter  days  of  the  slavery  agitation  when  Negroes 
were  classed  with  real  estate." 

23  Civil  Rights  Cases,  109  U.  S.  Reports,  3. 

24  U.  S.  vs.  Cruikshank,  92  U.  S.  Reports,  542. 

25  Civil  Rights  Cases,  109  Ibid.,  3. 
20  In  re  Lockwood,  154  Ibid.,  116. 

27  L.  &  N.  R.  R.  Co.  vs.  Schmidt,  177  Ibid.,  230. 

28  Plessy  vs.  Ferguson,  163  U.  S.  Reports,  537.     The  case  was  that  of 
a  quadroon  who  sued  to  test  the  constitutionality  of  an  act  passed  by 


678  HISTORY   OF   THE    SUPREME    COURT 

These  are  a  few  of  the  many  decisions  of  the  Supreme 
Court  of  the  United  States,  the  cumulative  effect  of  which 
was  to  allow  States  to  nullify  guarantees  of  freedom  for  the 
Negro.  That  many  States  did  this  is  common  knowledge. 
Finally,  the  Supreme  Court  sanctioned  the  most  revolting  kind 
of  Negro  peonage  in  the  case  of  Clyatt  who  had  been  found 
guilty  in  Florida  of  forcibly  keeping  Negroes  in  virtual 
slavery.  Passing  on  a  writ  of  certiorari,  the  Supreme  Court 
of  the  United  States  ordered  the  case  back  for  a  new  trial  on 
the  pretext  that  the  trial  judge  erred  in  permitting  the  case 
to  go  to  the  jury.20 

First  the  Negro,  Then  the  White  Worker. 

With  complete  indifference,  or  with  outright  approval,  ac- 
cording to  locality,  the  white  workers  had  thus  seen  the  Negro 
stripped  of  his  Constitutional  rights  and  reduced  to  a  position 
of  inferiority  in  law  as  well  as  custom.  The  Supreme  Court 
of  the  United  States  now  began  to  use  that  same  Fourteenth 
Amendment,  designed  to  protect  the  Negro,  against  the  whole 
of  the  working  class,  white  and  black.  When  this  fact  became 
evident,  the  amazement  of  the  white  workers  was  great.  Now 
they  —  or  at  least  some  of  them  —  perceived  that  the  rights 
of  no  one  portion  of  the  workers  could  be  curtailed  or  oblit- 

the  Louisiana  Legislature  compelling  the  separation  of  whites  and 
negroes  in  trains,  etc.  Justice  Harlan  expressed  his  contempt  for  the 
decision  of  his  colleagues.  He  said  it  was  a  pernicious  opinion,  and  that 
the  argument  that  social  equality  could  not  exist  between  the  two  races 
"is  scarcely  worthy  of  consideration"  (p.  561).  A  complete  reaction- 
ary, both  as  regarded  the  development  of  the  trusts,  on  the  one  hand, 
and  that  of  labor  organizations  on  the  other,  Harlan  was,  nevertheless, 
the  one  member  of  the  Supreme  Court  who  stood  up  consistently  for 
the  rights  of  the  Negro  race. 

ao  Clyatt  vs.  U.  S.,  108  U.  S.  Reports,  207.  Brewer  delivered  the 
Court's  decision.  In  this  case,  also,  Harlan  dissented.  !'  The  accused," 
he  said,  "made  no  objection  to  the  submission  of  the  case  to  the  jury, 
and  it  is  going  very  far  to  hold  in  a  case  like  this,  disclosing  barbarities 
of  the  worst  kind  against  these  negroes,  that  the  trial  court  erred  in 
sending  the  case  to  the  jury." 


UNDER   CHIEF   JUSTICE   FULLER 

crated  without  the  construction  being  applied  to  all  workers 
of  all  races. 

Using  the  Fourteenth  Amendment  to  load  the  helpless 
Negro  race  with  the  obloquy  of  prejudicial  law  and  custom, 
and  to  snatch  away  from  the  white  worker  what  trivial  rights 
he  still  had,  the  Supreme  Court  availed  itself  of  that  same 
amendment  to  put  corporations  in  a  more  impregnable  position 
in  law  than  they  had  ever  been  before.  This  new  develop- 
ment turned  up  in  the  case  of  the  Consolidated  Gas  Company 
vs.  the  City  of  New  York.  The  decision  in  that  case  revealed 
—  what  had  so  often  previously  been  demonstrated  —  that 
while  in  the  very  act  of  apparently  deciding  against  a  cor- 
poration, the  Supreme  Court  in  reality  set  another  precedent 
vastly  extending  intrenched  corporate  power  and  legalizing 
corporate  extortions. 


Property  Under  the  Fourteenth  Amendment. 

The  Legislature  of  New  York,  in  1906,  had  passed  an  act 
compelling  the  Consolidated  Gas  Company  of  New  York  City 
to  reduce  its  rates  to  eighty  cents  per  thousand  cubic  feet. 
Asserting  that  this  was  a  confiscatory  measure,  the  company 
contested  its  constitutionality.  But  why  was  it  alleged  to 
be  confiscatory?  Because,  so  the  company  contended,  the  re- 
duced rate  would  not  allow  a  "  fair  return  "  upon  the  invest- 
ment. 

Let  us  see  what  was  included  in  the  "  investment."  In  its 
total  capital  the  company  budgeted  a  certain  $12,000,000. 
Did  this  amount  represent  a  single  dollar  that  had  ever  been 
invested  ?  No.  It  represented  wholly  the  value  that  the  com- 
pany set  upon  its  franchise  rights.  That  is  to  say,  the  com- 
pany capitalized  at  $12,000,000  the  permission  it  had  fraudu- 
lently obtained  to  lay  pipes  in  New  York  City's  streets.30 

30  Many  of  the  original  franchises  had  been  secured  by  fraud  and 
bribery.  See,  the  "  History  of  Public  Franchises  In  New  York  City," 


68O  HISTORY    OF    THE    SUPREME   COURT 

The  Consolidated  Gas  Company  was  a  virtual  and  peculiarly 
oppressive  combination,  formed  in  1884,  of  the  New  York, 
Manhattan,  Harlem,  Metropolitan,  Municipal  and  Knicker- 
bocker gaslight  companies,  with  a  total  capital  of  $45,000,000. 
A  New  York  Senate  Committee,  called  the  "  Thomas  "  Com- 
mittee, was  appointed,  in  1885,  to  investigate.  It  reported 
that  nearly  every  company  had  hugely  watered  its  stock ;  that 
although,  for  example,  the  Knickerbocker  Company  claimed 
$3,104,000  capital,  there  was  nothing  to  show  what  capital  it 
actually  had ;  the  records  of  the  tax  department  showed  that 
it  had  been  paying  taxes  on  only  a  small  proportion  of  the 
total  with  which  it  was  credited.31  Of  the  Consolidated  Gas 
Company's  alleged  $45,000,000  capital,  the  committee  reported 
that  there  was  less  than  $20,000,000  of  actual  investment.32 
The  company  valued  its  various  franchises  at  $7,781,000,  yet 
it  had  never  paid  anything  whatever  to  the  city  for  them. 
The  committee  further  reported  that  during  ten  years  the 
consumers  had  paid  $9,000,000  to  the  company,  and  that,  "If 
these  ten  per  cent,  dividends  should  be  calculated  upon  the 
capital  actually  paid  in  by  the  stockholders  it  would  appear 
that  the  gas  consumers  in  ten  years  have  not  only  contributed 
such  dividend,  but  a  further  amount  sufficient,  in  fact,  to 
nearly  duplicate  the  present  system  of  gas  supply."  33 

In  view  of  these  facts  —  matters  of  public  record  —  it  may 
well  be  asked  whose  property  had  been  confiscated?  If  any 
had  been,  it  was  certainly  that  of  the  labor  power  of  the  army 
of  workers  who  had  built  and  who  operated  the  plants,  and 
of  the  working  class  of  New  York  City  in  general  constituting 
the  great  body  of  gas  consumers.  When  the  contesting  case 
was  decided  by  Judge  Hough  in  the  United  States  Circuit 
Court  in  New  York  he  accepted  the  estimate  of  the  company's 

pp.  92-99,  and  the  "  History  of  Tammany  Hall,"  p.  248,  by  Gustavus 
Myers. 

31  Report  of  the  Special  Senate  Committee,  1885 :  pp.  8-9. 

32  Ibid.,  p.  12. 

33  1 bid.,  p.  ii. 


UNDER    CHIEF   JUSTICE    FULLER  68l 

capitalization  as  being  $60,000,000,  of  which  $12,000,000  was 
put  down  as  representing  franchise  value,  and  Judge  Hough 
then  declared  the  eighty  per  cent,  law  confiscatory,  and  issued 
an  injunction  against  its  enforcement. 


A  Fact  Not  to  be  Overlooked. 

The  Supreme  Court  of  the  United  States  reversed  that  de- 
cision, assigning  Justice  Peckham  to  write  the  court's  opinion. 
Considering  the  explosive  hidden  in  Peckham's  decision,  there 
was  one  especially  remarkable  fact  which  escaped  general  at- 
tention. 

It  was  this :  Only  two  years  before  the  eighty-cent  bill  was 
enacted,  Justice  Peckham's  brother,  Wheeler  H.  Peckham,  a 
corporation  lawyer  in  New  York,  had  given  a  written  opinion 
in  favor  of  the  notorious  "  Remsen  gas  grab  "  bill  the  passage 
of  which  was  being  vigorously  denounced  by  opponents  of  the 
steal.34  This  was  a  bill  giving  a  comprehensive  new  franchise 
as  a  practical  gift  to  the  Consolidated  Gas  Company.  The 
corruption  in  the  New  York  Legislature  in  1905,  as  disclosed 
by  the  findings  of  the  Legislative  Investigating  Committee  of 
1910,  was  appalling.  The  suppression  of  the  eighty-cent  gas 
bill  in  I9O5,35  and  the  passage  in  that  year  of  the  Niagara 
water-power  bill  turning  over  Niagara  Falls  power  to  a  cor- 
poration, resulted,  it  was  estimated,  in  the  distribution  of  at 
least  $500,000  in  bribes.  And  these  were  only  two  of  many 
scandals.  In  fact,  Senator  Allds,  later  the  majority  leader, 
hastily  resigned,  in  1910,  from  the  New  York  Senate.  Imme- 
diately after,  the  Senate  by  a  vote  of  40  to  9  found  him  guilty 
of  corruption. 

34  And  see  details  in  Chapter  XVIII  of  Wheeler  H.  Peckham's  con- 
nection with  the   Standard   Electrical   Subway  Company,  and  how,  in 
1889,  he  was  active  in  seeking  to  get  an  underground  conduit  franchise 
for  it.     The  electric  light  companies  later  passed  under  the  control  of 
the  Consolidated  Gas  Company. 

35  The  bill,  however,  was  adopted  the  next  year. 


682  HISTORY   OF   THE   SUPREME   COURT 


A  Double-Edged  Decision. 

There  doubtless  was  not,  it  is  true,  any  connection  be- 
tween Wheeler  H.  Peckham  pleading  for  the  gas  franchise 
"  grab,"  as  embodied  in  the  Remsen  bill,36  and  the  decision 
of  his  brother,  Justice  Peckham.  At  an_,  rate  the  facts  bear 
reciting.  The  decision  of  the  Supreme  Court,  delivered  by 
Peckham,  reduced  the  Consolidated  Gas  Company's  capital  to 
less  than  $56,000,000.  But  in  the  act  of  declaring  the  eighty- 
cent  law  constitutional,  it  held  that  the  company  was  entitled 
to  earn  dividends  on  $7,781,000  of  franchise  values.  And  it 
also  held  that  corporations  were  entitled  to  six  per  cent. 
"  earnings "  on  their  stock,  thus  giving  the  highest  legal 
sanction  to  the  minimum  amount  capitalists  were  allowed  to 
drain  from  the  wage  workers  on  the  enormous  outputs  of 
watered  stock,  not  a  dollar  of  which  represented  any  actual 
investment.37 

"  Thus,"  says  a  legal  analyst,  "  was  the  legislative  sword, 
drawn  against  monopoly,  turned  back  into  the  vitals  of  the 
people,  in  whose  protection  it  had  been  raised.  A  prohibition 
designed  to  check  overcapitalization  had  been  transformed,  in 
the  judicial  crucible,  into  a  license  for  extortion.  Thus,  as 
often  happens,  the  people  got  the  decision,  but  the  corporations 

36  So  called  from  the  name  of  Assemblyman  Remsen,  who  introduced 
it.     In  a  long  interview  published  in  the  New  York  Evening  Post,  April 
16,  1910,  Remsen  said  that  the  bill  was  handed  to  him  to  introduce  and 
that  it  must  have  come  from  Senator  "  Pat "  McCarren,  the  corrupt 
tool  of  the  Sugar  Trust  and  of  the  gas,  traction  and  other  interests. 
As  the  recent  president  of  the  City  Club,  a  so-called  reform  organiza- 
tion, Wheeler  H.  Peckham,  in  advocating  the  passage  of  the  Remsen 
bill,  shrewdly  used  his  connection  with  that  club  to  give  the  impression 
that   the   City  Club   favored  it.     "  Mayor   McClellan,"   stated   Remsen, 
"  told  me  after  he  had  signed  the  bill  that  he  had  intended  to  veto  it, 
but  had  been  convinced  by  eminent  lawyers,  among  whom  were  Wheeler 
H.  Peckham,  that  the  bill  should  be  made  a  law."     Public  protest,  how- 
ever, was  so  great  that  when  the  bill  went  to  Governor  Odell  he  vetoed  it. 

It  may  be  mentioned  that  when  S.  Fred  Nixon,  Speaker  of  the  Assem- 
bly at  this  period,  died,  he  left  a  fortune  of  $1,500,000,  much  of  which  he 
had  deposited  in  Canadian  banks. 

37  212  U.  S.  Reports,  19. 


UNDER   CHIEF   JUSTICE   FULLER  683 

got  the  law — for  future  use."38  This  juridical  law  was  that 
a  mere  franchise,  no  matter  to  what  extent  fraud  and  bribery 
had  been  used  in  getting  it,  became  property,  and  could  be 
capitalized.  All  of  Peckham's  associates  —  Fuller,  Harlan, 
Brewer,  White,  McKenna,  Holmes,  Day  and  Moody  concurred 
in  the  decision. 

Chief  Justice  Fuller  and  Justice  Day  in  particular  were  well 
versed  in  authoritative  legal  precedents  as  regarded  franchise 
powers,  having  as  attorneys,  represented  gaslight  corporations. 
Many  of  the  gas  and  electric  light  plants  in  large  cities,  as  well 
as  industries  ind  transportation  systems,  were  controlled  by 
the  Standard  Oil  group.  This  group,  as  we  have  seen,  was 
powerful  in  the  control  of  the  Mutual  Life  Insurance  Com- 
pany.39 


Doctrine  of  "  Transitory  Risk." 

For  forty  years  the  courts  had  been  steadily  narrowing  the 
rights  of  injured  workers  to  get  compensation,  or  those  of 
their  survivors  from  recovering  damages.  By  a  remarkable 
decision  the  Supreme  Court  of  the  United  States  now  still 
further  curtailed  the  insignificant  rights  of  the  workers,  if 
indeed  any  rights  at  all  remained.  To  do  this  the  majority 

38  Jesse   F.   Orton,   "  Privilege   Becomes   Property   Under   the   Four- 
teenth Amendment,"  The  Independent,  issue  of  Oct.  12,  1911. 

39  Henry  H.    Rogers  and  William   Rockefeller   were   vice-presidents 
of  the  Standard  Oil  Company,  which  largely  controlled  the  Consolidated 
and  other  gas  companies.     Rockefeller  and  George  F.  Baker  were  di- 
rectors of  the  Consolidated  Gas  Company.     It  was  of  Elihu  Root,  so 
powerful  a  factor  in  Roosevelt's  administration  and  at  present  under 
Taf t's  that  Harriman  wrote  to  Sidney  Webster :     "  Ryan's  success  in 
all  his   manipulations     .     .    .    has   been   done  by  the   adroit  mind   of 
Elihu  Root.     .     .     ."     Root  was,  like  Rockefeller,   Rogers  and  Baker, 
a  trustee  of  the  Mutual  Life  Insurance  Company.     The  Ryan  referred 
to  was  Thomas  F.  Ryan,  the  capitalist  magnate.     In  1886  he  was  one 
of  the  manipulators  of  the  Metropolitan  Traction  Company,  the  stock- 
holders.of  which  were  robbed  of  $90,000,000.     Ryan  then  organized  and 
dominated  the  Tobacco  Trust  and  extended  his  ownership  of  properties. 
Ryan  was  one  of  the  directors  of  the  Consolidated  Gas  Company,  and 
Root  his  main  attorney. 


684  HISTORY   OF   THE   SUPREME   COURT 

of  the  Supreme  Court  resourcefully  invented  a  new  term 
which  they  called  "  transitory  risk." 

Chauncey  A.  Dixon,  a  fireman  operating  an  extra  train  on 
the  Northern  Pacific  Railroad,  had  been  killed  by  a  head-on 
collision.  The  time  tables  did  not  provide  for  the  running  of 
extra  trains.  The  train  was  not  on  the  regular  schedule,  and 
the  local  telegraph  operator  had  made  an  error.  Therefore, 
said  Justice  Brewer  in  delivering  the  opinion  of  himself, 
Brown,  Peckham,  Day  and  Holmes,  the  fault  was  the  teleg- 
rapher's ;  he  was  a  "  fellow  servant "  with  the  fireman,  and 
in  no  way  could  the  railroad  be  held  responsible.  Chief  Jus- 
tice Fuller,  and  Justices  White,  Harlan  and  McKenna  dis- 
sented. The  consequence,  said  they,  of  the  application  of  the 
doctrine  of  "  transitory  risk  "  was  that  a  railroad  operating 
its  trains  solely  through  the  orders  of  a  train  despatcher  "  is  a 
licensed  wrongdoer  as  respects  its  employes,"  and  was  ex- 
empted from  the  provisions  of  the  law.40  Practically  the  rail- 
road corporations  were  thus  authorized  to  continue  the  slaugh- 
ter of  workers,  and  their  immunity  from  the  consequences  was 
enlarged. 

In  the  year  in  which  this  decision  was  handed  down  3,632 
railroad  employes  were  killed,  and  67,067  injured.  The  total 
carnage,  including  passengers,  for  that  one  year  was  10,046 
killed,  and  84,155  injured.41 

Did  ever  a  battlefield  show  a  more  ghastly  slaughter?  And 
what  of  the  resources  of  the  railroads  that  refused  to  pay 
the  injured  or  the  survivors  of  the  killed?  They  had  a  total 
capitalization  of  nearly  fifteen  billion  dollars,  and  a  net  aver- 
age income  of  about  three  hundred  million  dollars.42  For  the 
destitute  worker,  maimed  or  crippled,  or  for  the  widows  and 
orphans  of  the  slain,  no  redress  of  any  kind ;  every  point,  con- 

40  Case  of  Northern  Pacific  Railway  Company  vs.  Dixon,  194  Ul  S. 
Reports,  338. 

41  Nineteenth  Annual  Report  of  the  Interstate  Commerce  Commission, 
p.  109. 

42  Ibid.,  83  and  303. 


UNDER  CHIEF  JUSTICE  FULLER  685 

struction  and  twist  of  law  was  used  against  them.  Vice  versa, 
law,  or  what  purported  to  be  law,  was  stretched  to  its  farthest 
limits  on  behalf  of  railroad  magnates  so  glutted  with  wealth 
that  the  mere  spending  of  a  moiety  of  it  taxed  their  ingenuity. 
And  just  as  the  railroad  workers  were  treated  by  the  Supreme 
Court,  so  were  the  workers  in  factories  and  mines,  the  slaugh- 
ter in  which  was  continuous. 


Kidnapping  of  Workers  Legalized. 

The  kidnapping  of  workingmen  was  the  next  step  legalized 
by  the  Supreme  Court  of  the  United  States. 

On  December  30,  1905,  former  Governor  Steuenberg  of 
Idaho  who  had  incurred  bitter  enmity  because  of  his  extreme 
brutality  toward  miners  striving  for  better  conditions,  was 
assassinated  by  a  bomb.  The  bomb  was  placed  at  the  gate  in 
front  of  his  house.  At  once,  without  the  slightest  proof  or 
justification,  the  whole  capitalist  press  of  the  United  States 
declared  that  the  crime  had  been  committed  by  the  Western 
Federation  of  Miners,  or  its  agents. 

A  month  and  a  half  later,  heavily-armed,  special  officers  ar- 
rested Secretary-Treasurer  William  D.  Haywood,  President 
Moyer  and  former  Executive  Committeeman  Pettibone  of  the 
Western  Federation  of  Miners  at  the  dead  of  night  in  Denver, 
Colorado.  Despite  the  law,  they  were  not  allowed  to  communi- 
cate with  friends  or  to  consult  counsel.  Every  chance  was 
denied  them  of  testing  in  the  courts  of  their  own  State  the 
legality  of  their  arrest  and  extradition.  According  to  the  pro- 
visions of  the  most  elemental  law,  no  one  could  be  denied  these 
rights.  Nor  could  any  arrested  person  be  extradited  without 
regular  and  due  process  of  law.  Common  and  statute  law 
asserted  these  rights.  The  Constitution  of  every  State  pro- 
claimed them.  The  Constitution  of  the  United  States  guaran- 
teed them,  or  professed  to. 


686  HISTORY   OF   THE    SUPREME    COURT 

What  Happened  to  Three  Labor  Leaders. 

But  Moyer,  Haywood  and  Pettibone  were  boldly  kidnapped. 
The  kidnapping  officials  had  a  special  train  in  readiness,  and 
the  three  union  officials  were  rushed  aboard.  It  was  evident 
that  the  Governors  of  Idaho  and  Colorado,  both  at  the  time 
tools  of  the  mine  owners,  had  secretly  arranged,  or  connived 
at,  this  audacious  undertaking.  When  the  next  day  the  news 
was  published,  a  roar  of  protest  and  indignation  went  up  from 
the  organized  workers  throughout  the  nation.  Time  and  time 
again  they  had  seen  capitalists,  accused  of  heinous  crimes,  given 
every  consideration  and  every  opportunity  of  contesting  ex- 
tradition. Now  the  workers  again  clearly  saw  that  two  kinds 
of  law  prevailed  —  one  variety  for  the  capitalist,  and  another 
for  the  working  class. 

Even  before  a  trial  was  held,  the  Mine  Owners'  Association, 
the  Citizens'  Alliance  and  other  capitalist  organizations  de- 
clared Moyer,  Haywood  and  Pettibone  guilty,  and  demanded 
that  they  be  hanged.  The  Western  Federation  of  Labor  im- 
mediately started  habeas  corpus  proceedings  before  a  Federal 
circuit  judge.  Upon  his  denying  the  writ,  an  appeal  was  taken 
to  the  Supreme  Court  of  the  United  States. 

From  old  it  had  been  held  a  sacred  rule  in  the  courts  that  ha- 
beas corpus  cases  should  be  determined  with  the  least  possible 
delay,  for  the  reason  that  they  involve  the  personal  liberty  of  the 
individual.  But  instead  of  considering  the  appeal,  the  Su- 
preme Court  of  the  United  States  took  a  long  summer  vaca- 
tion. Meanwhile  the  arrested  men  remained  in  prison. 

Habeas  Corpus  Writ  Refused. 

Finally  after  it  had  leisurely  set  a  day  for  the  hearing,  the 
Supreme  Court  of  the  United  States,  on  December  3,  1906,  by 
a  vote  of  eight  to  one,  handed  down  its  decision,  Harlan  de- 
livering it.  That  decision  virtually  legalized  the  kidnapping  of 


UNDER   CHIEF  JUSTICE   FULLER 

workers,  'annihilated  the  right  of  habeas  corpus  so  far  as  the 
working  class  was  concerned,  and  reduced  that  class  to  the 
complete  mercy  of  capitalist  oppressors.  Only  Justice  Mc- 
Kenna  dissented.  He  denounced  the  kidnapping  as  "  a  crime, 
pure  and  simple,"  and  declared  that  "  the  States,  through  their 
officers,  are  the  offenders."  This,  he  said,  was  not,  as  the 
majority  disingenuously  sought  to  make  it  out,  a  case  of  an 
individual  kidnapping  an  individual.  "  No  individual  or  indi- 
viduals could  have  accomplished  what  the  power  of  two  States 
accomplished ;  no  individual  or  individuals  could  have  com- 
manded the  means  and  success;  could  have  made  two  arrests 
of  prominent  citizens  by  invading  their  homes ;  could  have  com- 
manded the  resources  of  jails,  armed  guards  and  special  trains ; 
could  have  successfully  timed  all  acts  to  prevent  inquiry  and 
judicial  interference."43 

More  delay  ensued  before  the  three  labor-union  officials  were 
brought  to  trial  before  the  local  court  at  Boise,  Idaho.  A  ver- 
dict of  acquittal  was  the  result  of  the  whole  affair.  The  com- 
bined power  of  the  most  powerful  capitalist  organizations,  with 
the  power  of  Government  and  States  and  the  utterances  of  a 
prejudiced  President  at  their  command,  had  been  unable  to 
produce  the  slightest  evidence  against  Moyer,  Haywood  and 
Pettibone.  But  the  proceedings  did  reveal  the  fact  that  private 
detectives,  in  the  pay  of  capitalists,  had  blown  up  a  depot  at 
Independence,  Colorado,  with  the  object  of  charging  the  strik- 
ing miners  with  the  deed,  and  thus  discrediting  them. 

A  Sinister  Precedent. 

The  decision  of  the  Supreme  Court  of  the  United  States 
legalizing  kidnapping  thus  set  the  precedent  for  the  similar 
kidnapping  recently  of  the  two  McNamara  brothers,  officials 
of  the  Structural  Iron  Workers'  Union.  Secretly  kidnapped 

43  Pettibone  vs.  Nichols,  and  Moyer  vs.  Nichols,  203  U.  S.  Reports, 
192,  etc. 


688  HISTORY   OF   THE   SUPREME   COURT 

in  Indianapolis,  they  were  denied  counsel  or  process  of  law, 
and  were  rushed,  under  armed  guard,  to  Los  Angeles,  Cali- 
fornia, where  they  were  accused  of  instigating  or  causing  the 
destruction  of  the  Los  Angeles  Times  building  and  the 
Llewellyn  Iron  Works  and  the  loss  of  twenty-one  lives. 

As  the  trial  was  proceeding  at  Los  Angeles  they  confessed 
their  guilt  on  December  I,  1911,  James  B.  NcNamara  to  the 
blowing  up  of  the  Los  Angeles  Times  building,  and  J.  J. 
McNamara  to  dynamiting  the  Llewellyn  Iron  Works.'  The 
one  was  sentenced  to  life  imprisonment,  the  other  to  fifteen 
years,44  The  strong  evidence  gathered  against  them  led,  it 
was  stated,  to  their  confessions.  But  this  very  fact  —  the 
strength  of  the  evidence  —  made  the  matter  of  their  being  kid- 
napped all  the  more  unnecessary,  arbitrary,  and  tyrannical. 
Since  the  evidence  was  claimed  to  be  so  conclusive,  the  prose- 
cution was  under  all  the  more  reason  to  move  according  to  due 
process  of  law.  Cases  had  frequently  happened  of  prominent 
officials  or  capitalists,  accused  even  of  murder  like  a  former 
Governor  of  Kentucky,  fleeing  to  other  States  but  no  attempt 
had  been  made  to  kidnap  them. 

The  significant  fact  should  be  added  that  by  a  judicial  device 
the  case  of  the  detective  Burns,  who  was  indicted  for  kidnap- 
ping the  McNamaras,  was  transferred  from  the  State  courts 
to  the  Federal  courts,  and  Judge  Anderson  at  Indianapolis 
cancelled  his  bond,  quashed  his  indictment,  and  set  him  com- 
pletely free  without  even  subjecting  him  to  trial. 

The  decisions  of  the  Supreme  Court  of  the  United  States 
undermining  the  power,  or  extinguishing  the  rights,  of  the 

44  The  dynamitings  were  the  result  of  a  bitter  war  carried  on  against 
labor  unions  by  various  powerful  capitalist  organizations  which  were 
using  every  means  to  destroy  the  unions.  The  McNamaras,  it  may  be 
said,  were  aligned  with  the  extremely  conservative  ruling  element  of 
the  American  Federation  of  Labor,  were  Democrats  in  politics  and 
Roman  Catholics  in  faith,  and  refused,  like  other  leaders  of  the  American 
Federation  of  Labor,  to  support  the  peaceable  political-educational 
propaganda  of  the  Socialist  Party. 


UNDER   CHIEF   JUSTICE    FULLER  689 

working  class  were  sinister  enough.  But  now  came  another 
decision  of  so  extravagant,  unexpected  and  ominous  a  nature, 
that  labor  unions  were  dumfounded  from  sheer  amazement. 


Sherman  Act  Used  Against  Labor  Unions. 

For  twenty-one  years  the  Sherman  anti-trust  law  had  been 
on  the  statute  books.  When  the  law  was  passed,  trade  unions 
had  supported  it.  It  did  not  contain  the  remotest  reference 
to  labor  unions.  It  did  not  appear  to  apply  to  them ;  few 
dreamed  that  the  time  would  ever  come  when  it  would  be  so 
applied.  That  law  was  passed  at  the  behest  of  the  middle 
class,  and  was  expressly  and  distinctly  aimed  at  trusts  and 
railroad  combinations. 

The  Supreme  Court  of  the  United  States  had  been  unable  to 
discover  that  the  Sugar  Trust  was  a  trust;  it  had  not  broken 
or  even  impaired  a  single  trust ;  not  a  trust  magnate  had  suf- 
fered a  day's  imprisonment  because  of  its  decisions.  But  it 
did  now  fully  discover  that  the  labor  union  was  a  trust  in  re- 
straint of  trade.  The  very  trust  capitalists  who  were  amenable 
under  that  law  now  used  that  self -same  law  to  disrupt  labor 
unions.  Enjoying  immunity  themselves,  they  demanded  that 
the  labor  unions  be  strictly  prosecuted. 

Danbury  Hatters'  Case. 

The  action  in  which  this  extraordinary  turn  developed  was 
the  Danbury  Hatters'  case.  Alleging  that  the  United  Hatters' 
Union  had  injured  their  business  through  a  boycott,  Loewe 
and  Company  of  Danbury,  Connecticut,  brought  suit  against 
the  union.  Further  alleging  that  the  union  was  a  conspiracy 
in  restraint  of  trade,  under  the  provisions  of  the  Sherman  anti- 
trust law,  Loewe  and  Company  asserted  that  they  had  suffered 
to  the  extent  of  $80,000,  and  they  demanded  that  under  that 


690  HISTORY   OF   THE   SUPREME   COURT 

law  threefold  damages  be  awarded  them.  The  object  was 
clear.  If  such  an  enormous  sum  in  damages  were  allowed, 
the  union  would  be  bankrupted,  and  with  no  striking  fund  in 
the  treasury,  it  could  not  prosecute  a  strike,  or  peYhaps  even 
exist. 

Labor  Unions  "  Conspiracies." 

The  Federal  Circuit  Court  in  Connecticut  gave  a  verdict  of 
$222,000  against  the  two  hundred  members  of  the  United  Hat- 
ters' Union.  The  particular  question,  however,  carried  to  the 
Supreme  Court  of  the  United  States  was  whether  under  Section 
7  of  the  Sherman  anti-trust  law  the  Loewe  Company  could 
maintain  an  action  against  the  Hatters'  Union.  The  Supreme 
Court  unanimously  decided  that  it  could.  It  held  that  the 
union  was  a  combination  in  the  form  of  a  trust,  and  its  so- 
called  boycott  was  an  interference  with  a  free  flow  of  trade 
between  the  States,  and,  therefore,  in  restraint  of  trade. 

Here  was  a  capital  blow  at  organized  labor,  the  masterpiece 
of  all  assaults.  Under  this  decision  every  labor  organization 
could  be  proceeded  against  by  any  Federal  prosecuting  officer, 
and  union  members  could  be  punished  by  a  fine  of  $5,000  and 
by  imprisonment  for  a  year.  Soon  after  this  decision  the  hat 
manufacturers  entered  into  a  combination  or  "  lockout "  to 
enforce  non-union  conditions,  which  meant  a  reduction  in  the 
workers'  wages  and  further  privation. 

For  the  reasoning  of  the  Supreme  Court  one  would  be  justi- 
fied in  feeling  the  supremest  contempt,  were  it  not  for  the 
evident  fact  that  this  species  of  reasoning  coincided  exactly 
with  the  demands  of  the  capitalist  class.  A  labor  union  is  an 
organization  to  protect  the  only  property  its  members  have 
to  sell,  which  is  that  of  labor  power.  On  the  other  hand,  a 
trust  is  a  concentrated  organization  to  monopolize  the  pro- 
duction and  control  the  distribution  of  the  means  by  which 
people  must  live.  Suddenly,  and  without  warning,  an  act  in- 
tended to  break  up  trusts  is  applied  to  labor  unions. 


UNDER   CHIEF   JUSTICE    FULLER  69! 

Chattel  Slavery  Outdone. 

Capitalist  organizations  hailed  this  decision  with  joy,  and 
their  mouthpieces  once  more  eulogized  the  Supreme  Court  as 
the  bulwark  of  "  the  rights  of  property  and  the  freedom  of 
trade."  Among  the  workers  the  decision  was  received  with 
execrations. 

"  We  are  living  in  a  time  portentous  of  results  for  the  pres- 
ent as  well  as  the  future,"  wrote  Samuel  Gompers,  the  presi- 
dent of  the  American  Federation  of  Labor.  "  The  slave  owner 
was  usually  restrained  from  going  to  extremes  in  the  treat- 
ment of  his  slaves  by  the  fact  that  they  represented  property 
value  to  him,  but  if  the  industrial  situation  ensues  indicated  by 
this  court  decision,  the  wage  workers  would  be  more  under 
the  control  of  the  unscrupulous  employer  than  was  the  slave 
under  his  owner.  .  .  .  The  event  which  we  feared  has 
come  to  pass.  The  [Sherman  anti-trust]  law  has  long  been 
admitted  to  be  of  no  value  in  restraining  or  really  punishing 
trusts.  Useless  as  an  instrument  of  good,  perverted  from  its 
original  intent,  it  has  now  been  made  an  instrument  of  positive 
mischief.  We  know  the  Sherman  law  was  intended  by  Con- 
gress to  punish  illegal  trusts  and  not  the  labor  unions,  for  we 
had  various  conferences  with  members  of  Congress  while  the 
Sherman  act  was  pending,  and  remember  clearly  that  such  a 
determination  was  stated  again  and  again."  Outlaw  the  nor- 
mal activities  of  the  workers  to  protect  themselves,  Gompers 
concluded,  and  a  movement  would  eventually  result  which  he 
intimated  would  be  nothing  more  or  less  than  a  revolution.45 

But  although  labor  unions  were  adjudged  conspiracies  in 
restraint  of  trade,  the  point  as  to  whether  union  members 
could  be  collectively  held  liable  for  damages  was  not  determined 
by  the  foregoing  decision.  This  question  did  not  come  before 
the  Supreme  Court  of  the  United  States  until  1911.  On  Janu- 
ary 15,  1912,  this  Court,  in  denying  a  writ  of  certiorari  in  the 

45  The  American  Federatwnist,  issue  of  March  and  April,  1910. 


692  HISTORY  OF   THE   SUPREME   COURT 

case  of  Loewe  vs.  Lawler  (Danbury  Hatters'  case),  virtually 
affirmed  the  judgment  of  the  Circuit  Court  of  Appeals  that 
members  of  a  labor  union  could  not  be  held  to  answer  for 
damages  done  due  to  a  strike  or  accompanying  boycott,  ordered 
by  union  officers,  unless  it  was  conclusively  proved  that  mem- 
bers of  the  union  actually  participated  in  "  the  acts  of  vio- 
lence," or  authorized  them,  or  had  guilty  knowledge  of  them. 
Even  as  it  stood,  this  decision  contained  sinister  potentialities. 

Boycott  Illegal,  Blacklisting  Legal. 

At  about  the  time  it  decided  the  first  Danbnry  Hatters' 
case,  the  Supreme  Court  of  the  United  States  handed  down 
other  decisions  greatly  strengthening  the  power  and  aggres- 
sions of  capitalists  and  further  weakening  the  defenses  of  labor 
unions.  A  decision  dealing  with  the  Erdman  Interstate  Act 
of  Congress  enabled  the  railroads  to  maintain  a  blacklist 
against  members  of  labor  organizations,  and  discharge  them 
at  will. 

This  decision  came  in  the  suit  of  Adair  vs.  The  United 
States,  decided  January  27,  1908.  Had  Congress  power,  under 
the  Erdman  Act  of  1898,  to  make  blacklisting  a  crime?  The 
United  States  District  Court  in  Kentucky  decided  that  Con- 
gress had  the  power.  The  Supreme  Court  of  the  United 
States  reversed  this  decision,  and  held  that  blacklisting  was 
not  a  crime.  Upon  what  ground  did  the  Supreme  Couft  of 
the  United  States  declare  this  provision  of  the  Erdman  Act 
unconstitutional?  Why,  upon  the  ground  that  it  was  repug- 
nant to  the  fifth  amendment  of  the  Constitution  that  no  person 
shall  be  deprived  of  liberty  or  property  without  due  process 
of  law ! 4G 

Singular  that  the  Supreme  Court  had  not  thought  of  this 
amendment  when  it  virtually  legalized  the  kidnapping  of 
Moyer,  Haywood  and  Pettibone.  Strange  that  it  did  not  see 

40  208  U.  S.  Reports,  161. 


UNDER   CHIEF   JUSTICE    FULLER  693 

the  application  of  the  amendment  to  the  liberty  and  property 
of  the  laborer ;  his  liberty  to  agitate  for  better  conditions,  and 
his  right  to  protect  his  labor-  power,  which  was  the  only 
property  he  had.  But  such  decisions  were  really  neither 
strange  nor  singular  coming  from  men  who  never  would  or 
could  have  gone  on  the  Supreme  Court  Bench  had  it  not  been 
for  their  capitalist  training,  environment,  clientage  and  alli- 
ances. 

These  are  some  main  examples  of  decisions  of  the  Supreme 
Court,  not  omitting  the  Employers'  Liability  Act  which,  on 
January  6,  1908,  it  declared  unconstitutional.47  To  give  more 
examples  would  entail  a  monotonous  narration.  Boycotting, 
particularly  secondary  boycotting,  was  now  a  crime,  and  black- 
listing was  legal.  The  sum  of  the  decisions  was  to  give  the 
corporations  license  to  extirpate  the  labor  unions  and  to 
slaughter  the  workers,  while  at  the  same  time  every  effective 
weapon  of  defense  possessed  by  the  working  class  was  put  un- 
der the  ban  of  the  law. 

As  we  have  said,  the  country  was  filled  with  the  destitute, 
maimed  or  crippled  who  had  been  mangled  on  the  railroads 
or  in  the  factories  or  mines.  The  huge  army  of  victims  killed 
while  at  work  crowded  the  graveyards.  What  became  of 
their  widows?  What  of  their  sons  and  daughters?  Vital  sta- 
tistics revealing  deaths  from  disease  and  inanition  can  tell 
part  of  the  tale.  The  prison  records  can  supply  another  part ; 
the  tale  of  young  men  driven  to  crime  by  wretched  environ 
ment  and  gaunt  poverty.  The  remainder  of  the  tale  is  to  be 
read  in  brothels  or  on  the  midnight  streets  of  cities. 

Fuller  Almost  a  Millionaire. 

When  an  attorney,  Chief-Justice  Fuller  had  contested  claims 
of  injured  workers,  or  those  of  survivors  of  the  slain.  So 

47  This  was  an  act  passed  by  Congress,  June  n,  1006,  relating  to  the 
liability  to  employes  of  common  carriers  in  the  District  of  Columbia, 
and  Territories,  and  in  interstate  commerce.— 207  U,  S.  Reports,  463. 


694  HISTORY   OF   THE    SUPREME   COURT 

had  Day,  and  so,  likewise,  had  Holmes.  On  the  Bench  they 
had  generally  decided  against  the  workers.  The  country  was 
replete  with  poverty.  But  when  Chief  Justice  Fuller  died  in 
1910,  his  will,  admitted  to  probate  in  Chicago,  on  September 
17  of  that  year,  disclosed  that  he  left  an  estate  valued  at  $950,- 
ooo. 

Of  this  amount,  it  was  estimated  that  $115,000  had  been 
bequeathed  to  him  by  his  wife,  who  had  died  in  1904.  Of 
the  entire  estate  left  by  Fuller,  a  considerable  portion  was  in 
real  estate.  The  trustees  named  in  the  will  were  Stephen  S. 
Gregory  and  the  Merchants'  Loan  and  Trust  Company.  In  a 
carefully  worded  interview  given  to  the  newspapers  Gregory 
took  special  pains  to  point  out :  "  I  wish  that  stress  would  be 
laid  upon  the  fact  that  Fuller  did  not  make  his  money  since 
he  became  judge.  His  wealth  was  acquired  through  the  in- 
crease in  value  in  real-estate  holdings  in  Chicago  which  he 
acquired  early  in  life.  He  made  no  money  while  a  judge."  48 

48  See,  New  York  Herald,  July  12,  1910,  and  other  newspapers  of 
that  date. 


CHAPTER  XVII 


For  the  first  time  in  the  annals  of  the  Supreme  Court  of  the 
United  States,  the  choice  of  a  Chief  Justice,  was  not  made 
from  the  ranks  of  lawyers  but  the  selection  was  determined 
of  an  Associate  Justice  of  the  Supreme  Court  itself.  The 
member  thus  chosen  by  President  Taft  to  succeed  Fuller  was 
Associate  Justice  Edward  D.  White.  President  Taft,  succeed- 
ing Roosevelt  in  1909,  had  himself  been  a  judge  on  the  bench 
of  the  United  States  Circuit  Court.  Indeed,  it  was  authori- 
tatively said  that  Taft's  highest  ambition  was  to  go  on  the 
Supreme  Court  Bench,  but  his  election  as  President  interfered 
with  his  desire.  After  Fuller's  death  Taft  had  filled  vacancies 
on  the  Supreme  Court  by  appointing  Horace  H.  Lurton  and 
Charles  E.  Hughes  as  Associate  Justices  to  succeed  Peckha*hi 
and  Brewer.  Although  these  two  appointments  were  made 
during  the  incumbency  of  Fuller,  yet  they  came  late  in  that 
period,  and  we  have  accordingly  reserved  description  for  this 
chapter. 

Taft's  Views  and  Environment. 

Of  all  the  successive  Chief  Executives,  none  was  perhaps 
more  honest,  ingenuous  and  bluntly  outspoken  in  his  views 
than  Taft.  He  had  neither  political  instinct  nor  political  abil- 
ity, and  he  entirely  lacked  that  superfine  caution  and  cunning 
temporizing  that  marks  the  practiced  politician.  His  father 
had  been  a  corporation  lawyer  and  so  had  he ;  and  his  brother 
Henry  W.  Taft  had  represented  the  New  York,  New  Haven 
and  Hartford  Railroad.  In  his  class  instincts,  reenforced  by 

695 


696  HISTORY   OF   THE   SUPREME   COURT 

training  and  environment,  President  Taft  was  an  avowed 
spokesman  for  the  interests  of  the  dominant  class.  Unlike 
Roosevelt,  he  did  not  court  popular  favor  by  wordy  denuncia- 
tion of  capitalist  magnates  while  in  act  and  fact  serving  their 
ends. 

Obediently  Taft  ministered  to  their  interests,  but  not  pri- 
marily for  the  reason  that  he  desired  to  win  their  support  or 
campaign  contributions.  He  did  so,  because,  on  the  whole,  he 
sincerely  believed  that  it  was  the  right  and  proper  thing  to  do ; 
conviction,  not  calculation,  swayed  his  acts.  Infinitely  far  re- 
moved from  either  knowledge  or  understanding  of  the  work- 
ing class,  he  was  impervious  to  its  position,  aspirations  and 
movements.  But  to  the  masters  of  capital  and  their  retainers 
his  ear  was  ready  and  his  acts  responsive.  With  the  currents 
of  their  atmosphere  he  had  been  surcharged  from  his  earliest 
years. 

His  Defense  of  the  Judiciary. 

No  better  illustration  of  his  tenacious  defense  of  his  class 
and  his  indifference  to,  if  not  ignorance  of,  popular  thought 
could  have  been  afforded  than  his  effusive  praise  of  judges. 
At  a  time  when  a  profound  distrust  of  capitalist  law,  and  a 
resentment  at  the  manipulation  of  law,  had  permeated  the  mass 
of  people,1  Taft  publicly  gloried  in  his  profession  of  law.  The 
working  class  had  seen  law  arbitrarily  divided  into  one  appli- 
cation for  the  rich,  and  another  for  the  poor ;  they  had  seen  it 

1  Even  lawyers  themselves  often  publicly  denounced  the  complete 
subversion  of  law  for  the  benefit  of  the  capitalist  magnates.  Thus,  for 
example,  Samuel  Untermeyer,  a  conspicuous  corporation  attorney,  de- 
clared in  an  interview  on  June  15,  1909,  that  the  Government  had  no 
trouble  "  in  convicting  and  driving  out  of  business  a  few  poor,  strug- 
gling, comparatively  harmless  combinations  which  were  put  together 
to  prevent  bankruptcy  and  secure  a  small  profit.  But  the  financial  buc- 
caneers who  have  been  'holding  up'  the  country  in  the  necessities  of 
life  .  .  .  have  remained  immune,  until  every  lawyer  who  has  had 
to  deal  with  this  big  question  knows  that  the  pretended  'enforcement' 
of  the  law  is  a  huge  farce."  Untermeyer  might  have  added  with  equal 
accuracy  that  while  capitalists  escaped,  the  harshest  judgments  were 
inflicted  upon  the  working  class,  collectively  and  individually. 


UNDER    CHIEF   JUSTICE    WHITE  697 

used  as  a  powerful  and  apparently  invincible  instrument  for 
the  intrenchment  of  one  class,  and  the  crushing  and  attempted 
dispersion  of  another..  They  had  seen  the  mass  of  lawyers 
flocking  to  the  side  from  which  rich  fees  and  power  were  to 
be  had,  and  distorting  law  for  the  benefit  of  those  who  could 
repay  them  with  a  part  of  their  accumulated  loot.  They  had 
seen  the  judges  selected  from  these  lawyers,  and  they  had 
been  the  victims  of  the  extraordinarily  one-sided  and  partial 
decisions  of  those  judges. 

Popular  respect  for  the  judiciary  had  broken  down ;  among 
the  initiated  there  never  had  been  much,  if  any,  respect;  but 
now  the  lack  of  reverence,  amounting  to  bitter  indignation,  had 
grown  to  tremendous  proportions.  The  people  began  to  de- 
mand the  exercise  of  popular  control  over  the  judiciary 
through  the  power  of  recall. 

But  the  capitalists  as  keenly  realized  that  it  was  mainly 
through  the  decrees  of  judges  that  their  class  executed  their 
purposes.  Taft  vetoed  the  Arizona  Constitution  bill  providing 
for  the  recall  of  judges,  and,  caring  nothing  for  popular  opin- 
ion, gave  this  extravagant  eulogy  in  his  speech  at  Pocatello, 
Idaho,  on  October  6,  1911 :  "  I  love  judges  and  I  love  courts. 
They  are  my  ideals  on  earth  of  what  we  shall  meet  afterward 
in  Heaven  under  a  just  God.  .  .  ."  He  resented,  he  said, 
with  "  deep  indignation "  the  attacks  upon  the  courts,  and 
could  see  nothing  else  in  those  questionings  of  motive  and  acts 
than  attacks  for  "  mere  political  purposes."  Whereat  the 
powerful  capitalists  who  make  judges  must  have  smiled  de- 
liciously;  by  the  same  logic  if  judges  are  predestined  for  a 
reserved  place  in  Heaven,  their  creators  even  more  so  must 
certainly  be ! 

This  radiant  outburst  of  Taft's  genius  gives  something  of 
an  insight  into  the  mentality  of  the  man  of  the  White  House 
who  has  appointed  six  of  the  nine  judges  and  a  Chief  Justice 
of  the  Supreme  Court  of  the  United  States. 

But  it  is  not  Taft's  psychology  which  is  so  much  of  moment, 


698  HISTORY   OF   THE    SUPREME   COURT 

as  the  consideration  of  what  the  actual  facts  were  as  con- 
cerned the  election  or  appointments  of  judges.  It  will  be  seen 
that  judges  did  not  ascend  to  the  Bench  by  any  celestial  route 
or  by  the  workings  of  mysterious  laws  of  Providence.  The 
means  used  and  the  determining  influences  were  of  the  com- 
monest earthly  sort,  involving  such  sordid  measures,  in  the 
frequent  cases  of  State  judges,  as  the  purchase  of  nominations, 
and  in  cases  of  virtually  all  judges,  high  and  low,  as  the  back- 
ing of  political  bosses  who  in  turn  were  controlled  by  the  great 
corporations. 

The  Making  of  Judges. 

We  shall  not  pause  here  to  enter  into  what  would  unavoid- 
ably be  an  extended  account  of  how  State  judges  were  re- 
warded with  nominations  and  elections.  The  revelations 
brought  out  by  legislative  investigating  committees  in  New 
York  and  other  States  disclosed  how  they  often  practically 
purchased  nominations,  or  were  pushed  by  powerful  corpora- 
tions whose  campaign  contributions  were  the  deciding  factor.2 
Leaving  aside,  then,  the  sphere  of  State  judges,  we  shall  simply 
call  attention  to  a  series  of  facts  made  public  in  1908  regarding 
the  corporate  control  of  Judges  in  general. 

From  time  to  time  serious  public  scandals  had  developed, 
particularly  in  the  case  of  various  Federal  judges  charged  with 
being  susceptible  to  railroad  influences  and  of  availing  them- 
selves while  on  the  Bench  of  favors  from  railroads.  Not  often 
was  it  possible  to  prove  the  charges  legally,  inasmuch  as  such 
transactions  were  necessarily  and  largely  of  a  secret  char- 
acter. It  was  also  to  be  expected  that  the  United  States  Sen- 
ate, composed  as  it  was  almost  wholly  of  railroad  or  other 

2  To  give  one  illustration  of  many  examples :  Judge  Pryor  testified 
before  the  "  Mazet  "  New  York  Legislative  Investigating  Committee, 
in  1-899,  that  he  had  been  asked  by  a  Tammany  Hall  emissary  for 
$10,000  for  his  nomination  for  a  vacant  half-term  in  the  New  York 
State  Supreme  Court.  Other  judicial  candidates,  it  was  understood, 
paid  from  $10,000  to  $25,000  for  nominations. 


UNDER    CHIEF   JUSTICE    WHITE  699 

corporation  lawyers  or  magnates,  would,  as  the  trial  body, 
refuse  to  vote  impeachment.  Federal  Judge  Charles  Swayne, 
for  example,  accused  on  many  specifications  of  favoritism 
to  railroads,  escaped  impeachment,3  and  a  number  of  other 
Federal  judges  charged  with  the  same  offences  were  not  even 
brought  to  trial. 


Hunting  for  a  Qualified  Judge. 

There  were  also  those  exceedingly  edifying  developments 
regarding  the  Joint  Traffic  Association  suit,  brought  out  in 
the  course  of  a  hearing  before  the  Committee  on  Interstate 
Commerce  of  the  United  States  Senate,  in  1896.  The  Joint 
Traffic  Association  suit  was  an  action  instituted  by  the  Govern- 
ment in  the  Federal  Courts,  in  New  York,  against  thirty-two 
railroad  companies. 

"  When  it  came  up,"  Wallace  Macfarlane,  U.  S.  District- 
Attorney  for  the  southern  district  of  New  York,  testified  on 
December  17,  1896,  "  Judge  Lacombe  stated  that  in  his  opinion 
he  was  disqualified  to  hear  the  case,  or  any  proceedings  in  it, 
as  at  that  time  he  owned  bonds  or  stocks  in  some  of  these 
railroads;  and  he  also  stated  that  he  understood  that  most,  if 
not  all,  of  the  judges  of  that  circuit  were  under  the  same  dis- 
qualification. 

"  It  was  finally  found  that  Judge  Wheeler,  the  district  judge 
of  the  Vermont  district,  was  apparently  the  only  judge  in  the 
circuit  who  was  not  under  a  disqualification  similar  to  that 
which  Judge  Lacombe  stated  that  he  was  under,  namely  the 
holding  of  some  bonds  or  stocks  in  one  of  the  defendant  rail- 
roads. It  was  eventually  arranged  that  the  case  should  be 
heard  before  Judge  Wheeler,  as  it  finally  was.  .  .  . 

"  Before  the  cause  was  heard,  Judge  Lacombe  had  become 

3  See,  "  Proceedings  in  the  Senate  in  the  Matter  of  the  Impeachment 
of  Charles  Swayne,  Judge  of  the  District  Court  of  the  U.  S.  for  the 
Northern  District  of  Florida,"  Government  Printing  Office,  1905. 


7OO  HISTORY   OF   THE    SUPREME   COURT 

qualified.  The  disqualification  which  he  had  stated  when  the 
case  first  arose  had  been  removed  by  the  sale  of  any  bonds 
or  stocks  which  he  had  held  at  the  commencement  of  the  pro- 
ceedings. Judge  Lacombe  then  stated  that,  as  it  had  been 
arranged  that  the  cause  should  be  heard  before  Judge  Wheeler, 
he  preferred  to  have  it  remain  that  way,  as  the  cause  was  one 
which  he  could  safely  assume  would  be  appealed,  whatever  the 
result  might  be,  and  there  would  be  no  difficulty  in  constituting 
an  appellate  term  there,  and  he  [Judge  Lacombe]  would  be 
needed  for  the  purpose."  In  other  words,  Judge  Lacombe 
would  be  one  of  the  judges  sitting  on  appeal. 

This  testimony,  of  so  illuminative  a  nature  that  comment 
is  needless,  is  given  here  exactly  as  it  is  published  in  Document 
No.  64,  Senate  Documents,  Fifty-fifth  Congress,  First  Session. 

In  the  fall  of  1908,  William  R.  Hearst,  proprietor  of  a 
number  of  newspapers,  and  a  dabbler  in  politics,  contrived 
to  get  hold  of  copies  of  a  number  of  letters  written  by  John 
D.  Archbold,  then  the  practically  active  head,  and  now  (1912) 
the  president,  of  the  Standard  Oil  Company.  These  letters, 
the  authenticity  of  which  was  not  denied,  revealed  that  Arch- 
bold  had  the  most  confidential  relations  with  Quay,  Foraker 
and  other  United  States  Senators  and  legislators  and  with 
State  officials.  One  of  the  letters  disclosed  the  fact  that  on 
August  3,  1899,  Archbold  had  urged  upon  Quay  the  selection 
of  Thomas  A.  Morrison  for  the  Pennsylvania  Supreme  Court. 
Another  letter,  dated  September  5,  1900,  from  Archbold  to 
Governor  Stone,  of  Pennsylvania,  recommended  the  appoint- 
ment of  John  Henderson  to  the  same  court.  Both  Morrison 
and  Henderson  were  duly  appointed.  Other  letters,  dated 
February  5,  1900,  and  March  15,  1900,  from  Archbold  to 
Attorney-General  John  P.  Elkin,  of  Pennsylvania,  showed 
that  Elkin  received  $15,000  from  Archbold;  Elkin  later  became 
a  judge  of  the  Supreme  Court  of  Pennsylvania.  According 
to  these  letters  (and  they  were  doubtless  but  a  very  few  of 
many)  Archbold  had  his  secret  political  mechanism,  in  the 


UNDER   CHIEF   JUSTICE   WHITE  7OI 

operation  of  which  a  mere  word  from  him  to  the  political 
bosses  was  sufficient.  If  this  were  true,  as  it  evidently  was, 
is  it  not  a  fair  assumption  that  the  vigilant  solicitude  would 
be  extended  to  the  hightest,  as  well  as  to  the  lesser,  courts  and 
offices  ? 


Concentration  of  Wealth  and  Power. 

The  wealth  and  power  at  this  time  of  the  Standard  Oil 
Company  allied  with  J.  Pierpont  Morgan,  were  so  gigantic 
as  to  be  inconceivable  even  when  expressed  in  money  terms. 
In  1904,  the  total  capitalization  of  all  of  the  trusts,  including 
franchise  trusts  and  railroad  groups,  was  fully  $20,000,000,- 
ooo;  by  January  i,  1908,  the  grand  total  had  risen  to  nearly 
$32,000,000,000.*  "  This  thirty-one  billion  dollars  [$31,672,- 
000,000]  of  industrial,  franchise  and  transportation  trust  capi- 
talization," stated  Senator  LaFollette,  "  does  not  represent  all 
the  corporate  power  in  the  hands  of  the  Standard  Oil-Morgan 
combination.  It  does  not  include  their  financial  consolidations 
—  their  banks,  trust  companies  and  insurance  companies." 5 
Much  of  this  wealth  was  owned  outright  or  controlled  by  the 
Standard  Oil  Company  and  Morgan ;  the  remainder  was 
largely  owned  by  smaller  magnates  subsidiary  to  the  purposes 
and  interests  of  the  great  combination  which  had  already  begun 
a  systematic  process  of  crushing  or  completely  subordinating 
some  of  them. 

This  enormous  power,  centered  in  a  few  financial  dictators,, 
alarmed  and  affrighted  beyond  description  the  remnants  of 
small  business  men  still  remaining.  Overawed  by  such  vast 
wealth  and  power  in  a  few  hands,  clinging  to  the  hope  that 
by  some  magic  of  court  decree  the  great  combinations  would 
be  dissolved,  they  still  continued  their  agitation  for  the  en- 

4  Statistics  by  John  Moody. 

5 "  Centralization  and  Community  of  Control  in  Industry,"  etc. 
Speech  Delivered  in  the  U.  S.  Senate,  March  17-24  and  March  27, 
1908,  p.  45. 


702  HISTORY   OF   THE   SUPREME   COURT 

forcement  of  the  anti-trust  act.  Necessarily,  therefore,  eager 
attention  was  bent  upon  the  court  of  last  resort,  the  Supreme 
Court  of  the  United  States.  Never  as  much  as  after  Fuller's 
death  had  the  question  of  who  would  be  Chief  Justice  excited 
such  speculation  and  interest. 


Justice  White  Appointed  Chief  Justice. 

Surprise  was  great  when  Taft  appointed  Associate  Justice, 
White  to  the  vacancy.  Taft  was  a  Republican,  White  a  Dem- 
ocrat; this  effacing  of  partisan  lines  was  in  itself  a  stroke 
causing  wonderment  to  those  who  did  not  see  that  essentially 
both  the  old  political  parties  were  adjuncts,  reflexes  and  in- 
struments of  the  capitalist  system.  Both  stood  for  its  per- 
petuation, and  neither  represented  in  the  remotest  degree  the 
demands  of  the  working  class.  The  label  differed;  that  in- 
trinsically was  the  only  difference  between  the  two  parties, 
although  on  minor  points,  arising  from  the  conflicts  within  the 
capitalist  sphere,  they  superficially  had  their  contentions. 

Why,  it  was  asked,  was  White  appointed  Chief  Justice? 
There  were  those  who  sought  to  explain  the  appointment  on 
the  ground  of  religious  attachment.  Vague  yet  persistent 
reports  were  spread  that  the  influences  of  the  Roman  Catholic 
Church  were  subtly  and  effectively  used  in  White's  behalf. 
White  was  educated  in  a  Jesuit  college,  the  Georgetown  Uni- 
versity; and  the  Roman  Catholic  Church,  virtually  outlawed 
in  many  parts  of  the  country  a  century  or  more  ago,  has 
grown  to  a  position  of  great  economic  power,  owning  as  it 
does,  vast  properties  and  including,  as  it  does,  too,  many  capi- 
talist magnates  of  the  first  order.  The  prelates  of  this  church 
have  taken  an  organized  stand  for  the  perpetuation  of  the 
present  capitalist  order,  and  for  the  denunciation  of  all  radical 
movements,  especially  of  Socialism.  But  whether  the  rumors 
of  the  Roman  Catholic  backing  of  Chief  Justice  White  are 
true  or  not,  we  of  course  cannot  say;  they  are  given  here  in 


UNDER   CHIEF  JUSTICE   WHITE  703 

the  form  of  unverified  reports,  yet  possibly  not  without  sub- 
stance. 

But,  after  all,  White's  appointment  as  Chief  Justice  was  not 
determined  by  any  question  of  religious  faith.  Throughout  a 
long  career  he  had  evinced  the  highest  qualifications  for  ap- 
pointment to  the  exalted  post  .of  Chief  Justice,  as  those  quali- 
fications were  weighed  and  understood  by  those  upon  whom 
his  appointment  and  confirmation  depended.  On  the  Supreme 
Court  Bench  he  had  been  recognized  as  favoring  trusts. 

Chief  Justice  White's   Career. 

Born  to  some  wealth,  White  had  been  brought  up  in  a 
typically  Southern  atmosphere,  abounding  in  class  distinctions 
at  the  top  of  which  he  was  positioned.  He  acquired  a  large 
sugar  plantation,  which  he  has  since  extended,  in  the  La 
Fourche  district,  Louisiana.  In  various  published  accounts 
he  has  been  rated  a  millionaire,  but  these  accounts  are  not 
to  be  accepted  as  responsible ;  hence  it  is  not  possible  to  state 
his  wealth  explicitly.  His  friends  say  that  he  is  a  com- 
paratively poor  man.  As  a  lawyer  in  New  Orleans,  his  clients 
were  mainly  Jewish  merchants  of  wealth,  or  at  least,  of  means ; 
we  do  not  find  a  single  case  in  which  he  pleaded  the  cause  of 
a  poor  litigant.  However,  he  did  not  represent  any  railroad 
interest,  and  the  only  large  corporation  he  served  as  attorney 
was  the  Whitney  Bank,  now  the  biggest  in  New  Orleans.  He 
combined  law  and  politics;  his  was  the  characteristic  case  of 
a  rich,  young  man  entering  politics,  which  in  Louisiana  meant, 
of  course,  Democratic  politics.  He  became  one  of  Nicholls' 
political  lieutenants ;  he  was  a  State  Senator ;  and  when 
Nicholls  became  Governor  of  Louisiana  he  appointed  White, 
in  1878,  a  judge  of  the  Louisiana  Supreme  Court. 

At  that  time  the  controlling,  most  all-powerful  single  factor 
in  Louisiana  politics  was  the  Louisiana  Lottery  Company,  with 
its  net  annual  revenue  of  $8,000,000  a  year.  Widespread 


704  HISTORY    OF   THE    SUPREME   COURT 

agitation  to  abolish  this  company  gradually  crystallized,  in 
1890,  in  the  introduction  of  an  act  in  the  Louisiana  Legisla- 
ture refusing  to  extend  its  charter.  On  May  22,  1890,  Sena- 
tor Foster  proposed  a  resolution  in  the  Legislature  to  inquire 
into  charges  that  members  were  being  offered  $1,000  each 
for  their  votes.  Joseph  St.  Armant  was  arrested  on  June 
22,  1890,  on  a  charge  of  bribery.  Governor  Nicholls  vetoed 
the  bill  refusing  to  extend  the  company's  charter,  but  on 
July  8,  1890,  the  House  passed  it  over  his  veto.  During  this 
time  White  was  actively  and  publicly  opposing  the  Louisiana 
Lottery  Company. 

White  had  been  acting  as  the  Treasurer  of  the  State  cam- 
paign committee.  In  1890  the  Sugar  Trust,  on  the  one  hand, 
and,  on  the  other,  the  beet  sugar-cane  planters,  were  en- 
gaged in  a  bitter  quarrel  over  the  tariff ;  since  then,  it  may  be 
observed,  their  interests  have  become  more  or  less  identical, 
as  has  been  shown  by  bills  of  particulars  in  Government 
actions.  The  sugar  planters  were  among  the  most  adroit  and 
persistent  lobbyists  at  Washington,  a  fact  attested  by  the  pas- 
sage of  a  certain  act  in  1890,  which  act  we  shall  have  good 
occasion  to  describe  presently.  Thus  it  was  that  White,  a 
sugar-cane  plantation  owner,  was  elected  to  the  United  States 
Senate,  and  thus,  also,  White's  successor  in  the  Senate, 
Blanchard,  was  interested  in  sugar  plantations,  and  one  of 
the  present  United  States  Senators  from  Louisiana  —  Murphy 
J.  Foster  —  is  a  brother  of  J.  Warren  Foster  who  owns  per- 
haps the  largest  sugar-cane  plantation  in  the  State. 

White  Bitterly  Attacked. 

After  White's  election  to  the  United  States  Senate,  and 
before  he  took  his  seat  (in  1891)  in  that  body,6  a  campaign 

0  Under  the  peculiar  customs  of  Louisiana,  he  was  elected  to  the 
United  States  Senate  nearly  three  years  before  he  entered  that  body. 


UNDER   CHIEF  JUSTICE   WHITE  705 

of  assault  was  opened  upon  him  by  the  New  Orleans  Times- 
Democrat,  one  of  the  leading  newspapers  of  that  city,  and  of 
a  partisan  Democratic  character. 

On  July  1 8,  1890,  it  contained  an  editorial  asking: 
".  .  .  Is  Senator-elect  White  an  honest  man?  Is  he  a 
pure  man?  Or  is  he  a  hypocrite  and  cheat?  There  are 
rumors,  thick  as  leaves  in  Vallambrosa,  to  the  effect  that 
.  .  .  he  attained  to  the  dignity  of  which  he  is  so  proud 
by  means  that  were  not  pure.  .  .  .  Are  these  rumors  true  ? 
.  .  .  Will  the  Senator  tell  the  people  of  New  Orleans  how 
much  money  it  took  to  secure  him  his  election  to  the  United 
States  Senate  by  the  Legislature  of  Louisiana?  Will  he  tell 
where  he  got  the  money,  and  in  what"  special  channels  it  was 
disposed  of  ? 

"  These  are  not  idle  questions.  The  rumors  to  which  we 
refer  are  on  everybody's  lips;  they  are  either  true  or  they 
are  false. 

"  Our  columns  are  wide  open  to  the  Senator-elect  for  pur- 
poses of  explanation.  If  he  can  prove  the  rumors  false  the 
Times-Democrat  stands  ready  to  print  his  statement  and  to 
make  the  amplest  possible  reparation.  .  .  ." 

The  Times-Democrat  charged  editorially  on  July  22,  1890, 
that  it  could  prove  "  that  the  campaign  committee  of  which 
Senator-elect  White  was  treasurer,  received  the  sum  of  ten 
thousand  dollars  from  the  head  and  front  of  the  Lottery  Com- 
pany, which  the  Senator  disbursed  in  the  interest  of  Gov. 
Nicholls  and  himself  in  the  last  campaign."  The  statement 
went  on :  "  Let  not  the  Senator  attempt  to  deny  the  charge 
and  allege  the  money  was  subscribed  by  an  individual  and  not 
by  the  Lottery  Company. 

"  When  the  check,  which  had  been  solicited,  was  tendered 
to  the  committee,  one  member  objected  that  it  came  from  the 
Lottery  Company.  Another  member  said  that  he  regarded  it 
as  an  individual  subscription.  One  of  the  committeemen  then 


706  HISTORY   OF    THE    SUPREME    COURT 

said,  '  Gentlemen,  let  us  have  no  misunderstanding ;  the  money 
comes  from  the  Louisiana  Lottery  Company.'  The  money 
was  received,  turned  over  to  the  Treasurer  (now  Senator- 
elect)  White,  and  used  in  the  campaign  to  elect  that  exemplar 
of  all  the  virtues  —  Gov.  Nicholls. 

"  So  much  for  the  charge.  Will  the  Senator-elect  dare 
deny  it?  It  is  further  charged  —  the  Times  Democrat 
charges  and  can  prove  that  .  .  .  [Mr.  White]  received 
from  the  Lottery  Company,  or  rather  from  the  head  and 
front  of  that  concern,  the  sum  of  ten  thousand  dollars  to 
assist  him  personally  in  his  fight  for  the  Senate. 

"  Did  Senator  White  use  that  amount  honestly  ?  The 
amount  is  large  and  could  scarcely  have  been  consumed  in 
stationery. 

"  The  Times-Democrat  does  not  court  a  libel  suit.  It  is  a 
costly  and  disagreeable  mode  of  procedure,  but  still  the  courts 
are  open  to  the  Senator-elect  if  he  chooses  to  seek  redress 
therein."  7 

White  Replies  to  the  Charges. 

On  Sunday,  July  27,  1890,  the  Times-Democrat  published 
a  full  page  of  statements  from  Senator-elect  White  and  his 
associates,  giving  their  version  and  reply.  They  did  not  deny 
the  fact  of  the  $10,000  contribution,  but  stated  that  it  was 
spent  for  legitimate  political  purposes.  In  a  signed  personal 
statement,  White  wrote  that  if  he  could  have  stooped  to  the 
use  of  corrupt  means,  his  and  his  family's  personal  resources 
were  enough,  but  that  he  did  not  corrupt  a  single  vote  and 
his  total  expenses  were  just  about  $1,000,  nearly  half  of 
which  was  disbursed  in  the  cost  of  an  entertainment  and  re- 
ception given  to  the  members  of  the  entire  Democratic  caucus 
after  the  nomination  had  been  made. 

7  This  editorial  is  given  precisely  as  originally  published  but  with  an 
unimportant  part  omitted. 


UNDER    CHIEF   JUSTICE    WHITE  707 

In  the  same  issue  in  which  these  replies  were  published,  the 
Times-Democrat  contained  an  editorial  saying  that  White  ad- 
mitted the  charge  of  receiving  the  Lottery  Company's  money, 
and  disbursing  it  as  treasurer  of  the  Committee,  and  subse- 
quently as  chairman  of  the  finance  committee. 

".  .  .  The  Senator-elect  says,"  continued  the  editorial, 
"  that  no  money  was  given  him  to  elect  him  to  the  Senate. 
Did  not  every  dollar  he  received  from  the  Lottery  Company 
and  spent  to  help  elect  the  legislative  nominees  help  directly 
to  elect  him  to  the  Senate?  Was  he  not  working  to  that  end 
all  through  the  campaign? 

"  But  we  charged  that  the  Senator-elect  received  money 
from  the  Lottery  Company,  or  its  chief  representative,  to  assist 
him  in  his  personal  canvass.  The  Senator  denies  it.  We 
reaffirm  the  charge.  Will  he,  on  second  thought,  deny  that 
a  certain  sum  of  money,  ten  thousand  dollars  or  more,  was 
deposited  with  a  mutual  friend  who  disbursed  it  upon  his 
personal  orders?  Will  he  dare  deny  the  existence  of  these 
orders  ?  We  reaffirm  the  charge,  and  we  challenge  the  Senator- 
elect  to  bring  us  into  court,  where  he  and  our  witnesses  will 
be  upon  their  oaths." 

Again  on  July  31,  1890,  the  Times-Democrat  editorially 
"  declares  with  added  emphasis  that  Senator-elect  White  did 
receive  from  the  Lottery  Company's  chief  large  sums  of  money 
with  which  to  conduct  his  personal  canvass;  that  he  did  use 
that  money  for  that  purpose,  and  that  we  can  prove  that  fact 
in  a  court  of  justice  where  we  can  place  the  Senator-elect  on 
the  stand  under  oath  and  confront  him  with  our  witnesses. 

"  We  realize  the  gravity  of  the  charge,  and  offer  the  Senator- 
elect  an  opportunity  to  forever  set  the  matter  at  rest.  Will  he 
accept  it,  or  does  he  fear  to  meet  the  consequences  of  a  suit 
for  libel  against  this  paper?  We  are  prepared,  if  necessary, 
to  give  in  advance  good  and  solvent  bond  for  any  damages 
the  Senator-elect  may  be  awarded  by  a  jury." 


708  HISTORY  OF  THE   SUPREME   COURT 

Obvious  Motive  for  the  Attacks. 

We  have  given  with  equal  consideration  both  the  reiterated 
charge  and  the  reply,  allowing  the  reader  to  form  his  or  her 
own  conclusions.  So  far  as  is  ascertainable  Senator  White 
did  not  accommodate  the  repeated  desire  of  his  accusers  with 
a  suit  in  court.  What  the  motive  was  underlying  the  attack 
was  never  established  in  court  —  whether  it  was  sincere  indig- 
nation or  an  outgrowth  of  political  rivalries  or  an  attempt 
at  reprisal  by  enemies.  But  all  the  available  evidence  goes  to 
prove  that  the  Louisiana  Lottery  Company  was  seeking  to 
retaliate  upon  White  because  of  his  public  opposition  to  it 
during  the  legislative  fights.  Arraying  himself  prominently 
with  the  anti-lottery  forces,  White  was  elected  on  the  crest 
of  the  wave  of  public  indignation  which  swept  the  State, 
demanding  the  suppression  of  the  lottery.  It  was  certain  that 
the  publication  of  the  charge  put  White  into  an  extremely 
uncomfortable,  if  not  embarrassing,  position. 

The  contest  in  Congress  between  the  sugar  refiners  and  the 
sugar-cane  and  beet  planters  was  finally  compromised,  in  1890, 
by  the  passage  of  a  bounty  act  for  the  benefit  of  the  planters. 
White  had  not  yet  entered  the  Senate  when  this  measure  was 
passed.  Under  this  act  the  sugar-cane  and  sugar-beet 
planters  were  to  receive  from  $7,000,000  to  $10,000,000  in 
bounties  a  year  from  the  Government. 

In  1894,  however,  a  new  tariff  measure,  called  the  "  Wilson 
Bill "  was  introduced  in  Congress.  Cleveland's  Democratic 
administration  was  now  in  power,  and  the  majority  in  Con- 
gress were  Democrats.  When  this  bill  came  before  the  Sen- 
ate one  of  the  bitterly  contested  points  was  whether  the  sugar 
bounty  should  or  should  not  be  continued.  The  sugar-cane 
planters  were  extraordinarily  active,  and  not  less  so  the  repre- 
sentatives of  the  Sugar  Trust  which  seemed  now  to  be  work- 
ing in  harmony  with  the  planters.  The  beneficiaries  of  the 
bounty  act  were  largely  the  Louisiana  sugar-cane  growers. 


UNDER    CHIEF   JUSTICE    WHITE  7OQ 

Contest  over  the  Sugar  Schedule. 

On  February  i,  1894,  during  the  debates,  Senator  Allison, 
of  Iowa,  severely  denounced  the  sugar  bounty  act,  and  in- 
quired of  Senator  White  whether  that  payment  was  not  a 
wasteful  and  extravagant  expenditure  of  public  money.  Sena- 
tor White  answered  so  evasively  that  Allison  sharply  said, 
'  That  was  not  the  question  I  asked."  He  again  put  the  direct 
question.  White  replied  lamely,  saying  that  he  couldn't  sep- 
arate the  tariff  and  the  bounty  questions  ;  that  they  were  one  and 
the  same.  He  nevertheless  admitted  that  the  bounty  provi- 
sion was  "  a  wrong  against  the  revenue  system  of  the  Gov- 
ernment." 8  Senator  Harris,  of  Tennessee,  then  said  that  he 
regarded  the  sugar  bounty  from  the  beginning  "  as  an  outrage 
and  a  wrong.  ...  I  am  for  a  tariff  for  revenue,  but  I  am 
not  for  a  tariff  to  protect  or  benefit  any  particular  class  or 
any  particular  persons."  °  This  was  a  deep  thrust  inasmuch 
as  the  sequel  revealed  that  White  was  himself  a  considerable 
beneficiary  of  the  bounty  act. 

President  Cleveland  had  successively  nominated  William  B. 
Hornblower  and  Wheeler  H.  Peckham  to  fill  a  vacancy  on  the 
bench  of  the  Supreme  Court  of  the  United  States.  Both,  as 
we  have  previously  related,  were  conspicuous  corporation 
lawyers ;  and  of  Peckham's  advocacy  of  corporate  interests 
we  have  more  to  say  in  the  next  chapter.  But  belonging,  as 
Hornblower  and  Peckham  did,  to  a  wing  of  the  Democratic 
Party  in  New  York  State  opposed  to  Senator  David  B.  Hill, 
that  politician  made  their  nominations  a  personal  fight,  and 
succeeded  in  squelching  each  in  turn. 

These  nominations  having  been  thus  defeated,  Cleveland  was 
forced  into  the  position  of  nominating  someone  whom  the 
Senate  was  likely  to  confirm. 

8  Congressional  Record,  Fifty-third  Congress,  Second  Session,  Vol. 
XXVI:  p.  1773- 

9  Ibid, 


7IO  HISTORY   OF   THE   SUPREME   COURT 

White  Withholds  His  Resignation. 

On  February  19,  1894,  Cleveland  nominated  White  as  an 
Associate  Justice  of  the  Supreme  Court  of  the  United  States. 
The  fact  that  White,  instead  of  resigning  his  seat  in  the 
Senate  immediately,  remained  there  during  the  sugar-provision 
contest,  aroused  caustic  criticism.  Leading  Democratic  news- 
papers commented  sharply  upon  his  retaining  his  seat  during 
the  very  time  that  legislation  was  being  put  through  for  the 
further  enrichment  of  the  sugar-cane  planters.  Thus,  the 
New  York  World,  the  foremost  and  most  influential  advocate 
of  Cleveland's  reelection  in  1892,  editorially  denounced  Sen- 
ator White's  conduct  as  "  a  disgraceful  spectacle,"  and  further 
declared  that  White  was  unfit  to  be  a  Justice  of  the  Supreme 
Court  of  the  United  States.10  Other  newspapers  published 
similar  opinions.  In  fact,  Senator  White  did  not  resign  his 
seat  in  the  United  States  Senate  until  March  8,  1894. 

The  Safety  Appliance  Act. 

But  while  thus  criticizing  Senator  White,  the  newspapers 
in  question,  it  may  be  parenthetically  remarked,  refrained  from 
giving  him  the  great  credit  he  deserved  for  his  extremely  good 
and  able  work  in  the  Senate,  in  1893,  in  so  amending  the 

10  Published  March  6,  1894.  We  shall  give  also  an  instance  of  criti- 
cism from  a  .Republican  newspaper  —  the  New  York  Tribune  —  which, 
on  February  20,  1894,  charged  that  White  had  occupied  himself  mainly 
to  defeat  the  Administration's  tariff  bill,  "bulldozing  the  Finance  Com- 
mittee's '  steerers '  with  the  threat  to  vote  against  it  unless  a  liberal 
measure  of  protection  were  guaranteed  to  the  Louisiana  sugar  inter- 
ests." And  referring  to  White's  appointment  as  an  Associate  Justice 
of  the  Supreme  Court  of  the  United  States  the  Tribune  account  con- 
tinued :  "  It  is  whispered,  indeed,  that  Mr.  White's  appointment  to-day 
may  have  been  largely  due  to  a  feeling  on  the  part  of  friends  of  the 
Wilson  bill  that  its  chance  of  passage  might  be  improved  if  the  senior 
senator  were  gotten  out  of  the  way,  and  some  less  active  and  influential 
advocate  of  the  sugar  interest  should  replace  him  on  the  Louisiana 
delegation  in  Congress."  But,  as  we  have  said,  White  did  not  resign  his 
seat  until  the  following  month. 


UNDER    CHIEF   JUSTICE    WHITE  711 

Safety  Appliance  Act  that  it  operated  to  the  advantage  of  the 
workers  in  personal  injury  cases. 

The  railroad  magnates  had  so  trickily  framed  the  bill  that 
while  the  injured  worker  would  have  been  relieved  from  the 
charge  of  contributory  negligence,  the  courts  could  have  held 
that  he  had  assumed  the  risk.  Senator  White  had  never  been  a 
railroad  attorney.  But  he  was  a  good  lawyer.  He  exposed 
the  shallowness  of  the  clause  as  it  originally  stood,  and 
amended  it  by  striking  out  the  words  "  shall  not  be  deemed 
guilty  of  contributory  negligence,"  and  by  substituting  "  shall 
not  be  deemed  thereby  to  have  assumed  the  risk  thereby 
occasioned."  His  excellent  amendment  was  finally  adopted.11 

To  return,  however,  to  the  tariff  bill : 

Successive  great  scandals  had  arisen  over  the  manipulation 
of  the  tariff  bill,  especially  the  sugar  clauses.  So  numerous 
and  insistent  were  the  charges  that  Senators  were  buying  and 
selling  sugar-trust  stock  (the  market  value  of  which  they 
could  affect  at  will  by  their  votes)  that  Peffer,  a  Populist  Sena- 
tor, moved  for  an  investigation.  This  resolution  was  voted 
down.  But  the  charges  were  made  with  renewed  force ;  the 
Senate  finally,  upon  motion  of  Lodge,  then  in  the  "  reformer  " 
stage  of  his  career,  virtuously  decided  to  appoint  an  investi- 
gating committee. 

Investigation  of  Sugar-Stock  Jobbing. 

Now  ensued  an  edifying  situation.  Witnesses  conveniently 
"  disappeared  "  or  "  refused  to  appear."  H.  O.  Havemeyer, 
the  head  of  the  Sugar  Trust,  actually  whistled  at  the  commit- 
tee, and  laughed  at  its  proceedings.  There  was  loud  talk  of 
bringing  contempt  proceedings  against  him,  but  it  was  merely 
vapor;  no  one  believed  that  the  committee  was  disappointed 
at  not  getting  evidence  incriminating  Senators  personally. 

11  The  Congressional  Record,  Fifty-Second  Congress,  Second  Session, 
Vol.  24,  Part  II :  1480-1481. 


712  HISTORY   OF   THE    SUPREME   COURT 

Havemeyer  was  cynically  willing  to  give  general  testimony,  but 
point  blank  refused  to  be  specific  as  to  individuals. 

When  asked  if  he  contributed  to  State  campaign  funds,  he 
genially  replied:  ".  .  .  We  always  do  that.  ...  In 
the  State  of  New  York  when  the  Democratic  majority  is 
between  40,000  and  50,000,  we  throw  it  their  way.  In  the 
State  of  Massachusetts,  when  the  Republican  party  is 
doubtful,  they  have  the  call.  Wherever  there  is  a  dominant 
party,  wherever  the  majority  is  very  large,  that  is  the  party 
that  gets  the  contribution,  because  that  is  the  party  that  con- 
trols local  matters."  12  This  was  the  same  Havemeyer  who 
as  the  head  of  the  Sugar  Trust  cheated  the  Government  later 
out  of  enormous  sums  in  custom-house  frauds.  These  sums 
ran  into  the  tens  of  millions  of  dollars,  and  when  the  frauds 
were  discovered^  Havemeyer  was  so  thoroughly  frightened 
that  his  death,  in  December,  1907,  soon  followed.  The  Sugar 
Trust  was  (to  repeat)  compelled  to  pay  as  restitution  to  the 
Government  more  than  $2,000,000,  but  this  was  only  a  slight 
disgorging  of  the  immense  total  of  plunder.13 

What  the  Reports  Showed. 

Considering  this  subsequent,  proved  fraud  and  corruption 
carried  on  by  the  Sugar  Trust,  it  is  altogether  likely  that  the 

12  Senate  Report  No.  485,  Fifty-third  Congress,  Second  Session,  June 
21,    1894.     This   testimony  was    simply   a   paraphrase    of   Jay    Gould's 
formula,   as   expressed   in    1873 :     "  In   a   Republican   district   I   was   a 
Republican ;  in  a  Democratic  district,  a  Democrat ;  in  a  doubtful  district 
1  was  doubtful;  but  I  was  always  for  Erie." 

13  Said  the  Annual  Report  for  1909  (p.  12)  of  the  U.  S.  Attorney- 
General  :     ".     .     .    The  evidence  in  the  suit  above  referred  to  revealed 
a  long-continued  system  of  defrauding  the   Government,  of   unparal- 
leled depravity."     The  report  further  stated  that  in  April,  1909,  a  com- 
promise  was   made   whereby  the   American   Sugar    Refining   Company 
paid  the  Government  a  judgment  of  $134,411.03,  and,  in  addition,  the 
sum  of  $2,000,000  as  restitution  for  custom-house  frauds.     "  The  evi- 
dence has  disclosed  a  network  of  corruption  extending  over  a  period  of 
years    .    .    .,"   wrote    the    Attorney-General.     But   the    heads    of   the 
trust  completely  escaped  punishment, 


UNDER    CHIEF   JUSTICE    WHITE  713 

charges  of  corruption  made  against  it  in  1894  were  far  from 
being  ill-founded. 

The  Democratic  majority  report  of  the  Senate  Investigating 
Committee  was  of  a  "  whitewashing "  nature,  inculpating 
nobody.  But  the  Republican  minority  report  of  Senator 
Lodge  showed  that  the  Sugar  Trust  magnates  —  Havemeyer, 
Searles  and  others  —  had  "  addressed  their  arguments  "  prin- 
cipally to  Senator  Gorman  and  other  Democratic  Senators. 
Allowance  should  be  made  for  the  partisan  character  of  both 
reports.  ""It  appears,"  said  the  Lodge  report,  "by  the  testi- 
mony of  Senator  Vest,  that  Senator  Brice,  of  Ohio,  Senator 
Smith,  of  New  Jersey,  Senator  Hill,  of  New  York,  and 
Senators  White  and  Caffery,  of  Louisiana,  after  said  con- 
ference [a  Democratic  caucus]  came  to  the  rooms  of  the 
finance  committee  in  regard  to  the  sugar  schedule.  Senator 
Vest  testified  that  Senator  Gorman  urged  a  duty  of  forty 
per  cent,  ad  valorem,  and  one-fourth  of  a  cent  a  pound  dif- 
ferential in  favor  of  refined  sugars  as  the  proper  schedule." 

Gorman's  purpose  thus  was  to  double  the  tariff  schedule 
on  sugar.  Instead  of  the  $20,000,000  gift  a  year  to  the 
Sugar  Trust  which  the  one-eighth  of  a  cent  a  pound  schedule 
would  present  to  the  Sugar  Trust,  Gorman  sought  to  make 
the  schedule  one-fourth  of  a  cent  a  pound,  thus  giving  the 
Sugar  Trust  a  donation  of  $40,000,000  annually.  At  this 
point  Senators  White  and  Caffery  interfered,  and  prevented 
Gorman's  complete  plan  from  succeeding;  White  and  Caf- 
fery were  evidently  not  susceptible  to  the  arguments  of 
the  Sugar  Trust,  like  Gorman,  Brice  and  others.  The  Sugar 
Trust,  however,  obtained  a  high  enough  tariff.  As  for  the 
sugar-cane  and  beet  growers,  they  eventually  received  their 
equivalent.  The  bounty  act,  repealed  in  1894,  was  restored 
in  1895. 

The  Sugar  Trust  had  already  planned  to  control  the  large 
cane  and  beet-sugar  producing  interests.  By  the  year  1904 
it  had  carried  the  process  to  the  point  where  it  had  acquired, 


714  HISTORY   OF   THE   SUPREME   COURT 

controlled  or  dominated  fifty-five  corporations,  and  held  con- 
trol of  from  seventy  to  ninety  per  cent,  of  the  industry,  in- 
cluding raw  and  refined  sugar-cane  and  beet  production.1* 
In  its  voluminous  suit  filed  against  the  Sugar  Trust,  on  No- 
vember 28,  1910,  the  Government  charged,  among  many  other 
allegations,  that  the  American  Sugar-Refining  Company  (the 
Sugar  Trust)  held  stock  in,  or  control  over,  various  cane-sugar 
and  beet  companies. 

Explaining  this  development,  we  can  now  revert  to  what 
further  happened  in  1894-1895. 


White  as  a  Sugar  Bounty  Beneficiary. 

On  March  i,  1894  the  United  States  Senate  adopted  a  reso- 
lution calling  upon  Carlisle,  Secretary  of  the  Treasury,  for  a 
statement  showing  the  names  of  individuals,  firms  and  corpor- 
ations who  had  received  gratuities  under  the  sugar  bounty  act. 
Carlisle  sent  in  a  specific  report  giving  the  requested  state- 
ment, which  report  did  not  cover  all  the  years  from  1890;  it 
dealt  only  with  the  fiscal  year  1892-1893,  and  part  of  the 
fiscal  year  up  to  March  i,  1894.  This  report  showed  that 
of  the  total  of  about '$10,000,000  a  year  being  paid  by  the 
Government  in  sugar  bounties,  the  Louisiana  sugar  planters 
were  receiving  $8,500,000  a  year.15  The  itemized  list  of 
beneficiaries  revealed  that  Senator  Edward  D.  White  had 
received  $31,367.06  in  bounties  from  the  Government  for  the 
fiscal  year  1892-1893,  and  $18,186.86  for  a  part  of  the  fiscal 
year  up  to  March  i,  i894.ic 

The  Government  challenged  the  constitutionality  of  the  sugar 
bounty  act;  it  undoubtedly  could  be  construed  as  being  legis- 

14  Moody's  "  Truth  About  The  Trusts,"  p.  67.     Moody  states  that  its 
element   of   monopoly  consisted   principally   of   strong   tariff   bounties, 
control  of  raw  material,  etc. 

15  Senate  Executive  Document  No.  61,  Fifty-third  Congress,  Second 
Session. 

16  See  page  15  of  Ibid. 


UNDER    CHIEF   JUSTICE    WHITE  715 

lation  for  a  favored  class.  When  the  Government  refused 
to  continue  bounty  payments  under  the  act,  the  sugar-cane 
growers  brought  two  test  suits.  One  case  was  that  of  Realty 
Company,  the  other  that  of  Gay,  against  the  United  States. 
The  lower  courts  decided  against  the  Government  which  now 
appealed  to  the  Supreme  Court  of  the  United  States. 


Sugar  Bounty  Act  Upheld. 

The  decision  of  this  court  was  handed  down  on  May  25, 
1896.  Justice  Peckham  wrote  the  court's  decision ;  there  was 
not  a  single  dissenting  opinion.  Before  giving  this  decision 
we  will  remind  the  reader  that  only  the  year  before  —  on  Jan- 
uary 21,  1895  —  the  Supreme  Court  of  the  United  States  had 
declared  the  Sugar  Trust  not  to  be  a  criminal  combination,  and 
on  May  27,  1895,  it  had,  on  an  entirely  extraneous  point, 
affirmed  the  sentence  of  Eugene  V.  Debs  to  six  months  in 
jail. 

In  the  sugar  bounty  cases  the  decision  brought  out  the  fact 
that  the  act  of  1890  was  to  run  for  fifteen  years;  that  under 
it  the  Government  had  already  paid  out  tens  of  millions  of 
dollars  in  bounties,  and  that  the  question  of  its  constitution- 
ality was  not  raised  by  the  Government  until  1895. 

The  decision  was  wholly  in  favor  of  the  sugar-cane  and 
beet  planters  upon  two  main  grounds  —  one,  that  the  planters 
had  acquired  a  vested  right  in  legislation,  the  other  ground 
that  this  right  was  intrenched  by  the  doctrine  of  acquiescence. 
Let  us,  however,  quote  Justice  Peckham's  exact  language. 

".  .  .  Under  that  act  and  during  its  existence,"  he 
wrote,  "  large  sums  of  money  were  paid  to  sugar  manufac- 
turers as  a  bounty,  and  all  manufacturers  continued  to  manu- 
facture in  reliance  upon  .its  provisions.  During  those  years 
no  officer  of  the  Government  questioned  the  validity  of  the 
act,  and  the  bounties  under  it  were  paid  without  objection 
or  any  hint  that  objection  would  thereafter  be  taken  while 


716  HISTORY   OF    THE    SUPREME   COURT 

the  law  was  in  force.     This  condition  continued   for  about 
three  years." 

Its  Unconstitutionally  "  Immaterial." 

Peckham  went  on : 

"  In  our  opinion  it  is  not  correct  to  say  that  no  moral, 
equitable  or  honorable  obligation  can  attach  in  favor  of  per- 
sons situated  as  were  the  defendants  here,  when  the  act  of 
1895  was  passed.  We  think  obligations  of  that  nature  may 
arise  out  of  such  circumstances."  Then  followed  this  re- 
markable doctrine :  "  We  regard  the  question  of  the  uncon- 
stitutionality  of  the  bounty  provisions  of  the  act  of  1890  as 
entirely  immaterial  to  the  discussion  here.  These  parties  did 
not  at  the  time  (when  manufacturing  under  its  provisions) 
know  that  it  zvas  unconstitutional.17 

".  .  .  But  it  is  said  that  if  an  act  be  unconstitutional  the 
law  imputes  to  these  parties  at  all  times  a  knowledge  of  its 
invalidity,  and  that  it  is  not  rendered  valid  by  acquiescence  in 
its  provisions  for  any  length  of  time  even  by  officers  of  the 
government  holding  the  highest  places  therein  and  who  are 
charged  with  its  execution  and  believe  in  its  validity.  .  .  ." 
Peckham  went  on  to  say  that  in  such  a  case  as  this,  knowl- 
edge of  its  unconstitutionality  could  not  be  imputed  to  the 
beneficiaries.  "  These  parties  cannot  be  held  bound,  upon 
the  question  of  equitable  or  moral  consideration,  to  know 
what  no  one  else  actually  knew,  prior  to  the  determination  by 
some  judicial  tribunal,  that  the  law  was  unconstitutional." 
The  beneficiaries  had  arranged  their  business  affairs  in  ex- 
pectation of  receiving  the  bounties  and,  therefore,  "  We  are 
of  the  opinion  that  the  parties  situated  as  were  the  plaintiffs 
in  these  actions,  acquired  claims  of  an  equitable,  moral  and 
honorary  nature."16 

17  163  U.  S.  Reports,  437.    The  italics  are  mine. —  G.  M. 

18  Ibid.,  439.     My  italics. —  G.  M. 


UNDER    CHIEF   JUSTICE    WHITE 


A  Classic  Example. 

If  anyone  be  disposed  to  look  for  a  classic  example  of  class 
decisions,  this  case  will  abundantly  suffice. 

It  is  to  be  noted  that  the  trifling  question  of  constitutionality 
of  an  act  was  "  entirely  immaterial."  The  principal  attorney 
for  the  sugar-cane  growers  was  Joseph  H.  Choate,  the  same 
who  for  a  large  fee  successfully  argued  at  that  very  time  that 
the  income  tax  was  unconstitutional.  The  Justice  writing  the 
decision  was,  as  we  have  said,  Peckham,  who  later  wrote  the 
decision  (which  we  have  previously  described)  declaring  that 
a  New  York  law  decreeing  shorter  hours  for  bakeshop  workers 
was  unconstitutional.  The  people  at  large  and  the  working 
class  in  particular  had,  it  was  clear  to  the  Supreme  Court,  no 
vested  right  in  legislation  for  their  benefit  ;  they  acquired  no 
claims  of  "an  equitable,  moral  and  honorary  nature  "  in  legis- 
lation. But  capitalists  draining  the  Government  treasury  of 
tens  of  millions  of  dollars  unquestionably  had  those  claims, 
according  to  the  exalted  Supreme  Court.  On  the  question  of 
labor  legislation,  the  issue  of  unconstitutionality  was  very 
material  ;  on  that  of  capitalist  interests,  it  was  "  entirely  imma- 
terial." 

One  of  the  capitalists  profiting  from  that  sugar  bounty  was, 
as  we  have  seen,  Edward  D.  White,  an  Associate  Justice  of 
the  Supreme  Court  of  the  United  States  at  the  time  the 
decision  was  given.  But  Justice  White,  in  nowise  disposed 
to  violate  the  law  forbidding  judges  from  sitting  in  their  own 
causes,  scrupulously  refrained  from  taking  any  part  in  these 
cases,  as  is  evidenced  by  the  following  note  on  the  records, 
"  Mr.  Justice  White  did  not  sit  in  nor  take  any  part  in  the 
decision  of  these  cases."  19 

10  For  the  record  of  the  cases  in  full,  see,  U.  S.  vs.  Realty  Company 
and  U.  S.  vs.  Gay,  163  U.  S.  Reports,  427-444.  According  to  the  best  in- 
formation obtainable,  Chief  Justice  White's  plantation  is  managed  on 
more  or  less  obsolete  methods,  and  its  machinery  is  more  or  less  anti- 
quated. 


718  HISTORY   OF   THE    SUPREME   COURT 

Of  Justice  White's  stand  in  decisions  affecting  various 
questions  during  the  years  he  was  an  Associate  Justice  suf- 
ficient details  have  already  been  given  in  previous  chapters. 

We  shall  now  take  up  the  careers  of  various  men  appointed 
by  Taft  as  Associate  Justices. 

Justice  Lurton's  Career. 

The  first  of  these  was  Horace  H.  Lurton.  He  was  sixty- 
five  years  old  at  the  time  of  his  appointment.  Admitted  to 
the  bar  in  Tennessee,  in  1867,  Lurton  at  once  became  a  cor- 
poration attorney.  The  court  records  show  that  as  early  as 
1870,  when  he  was  the  age  of  twenty-six  years,  Lurton  was 
an  attorney  for  the  Louisville  and  Nashville  Railroad.20  It 
may  be  explained  that  the  Louisville  and  Nashville  Railroad 
has  controlled  politics  in  its  territory  almost  as  absolutely  as 
the  New  .York,  New  Haven  and  Hartford  in  Connecticut,  the 
Boston  and  Maine  in  New  England  or  the  Southern  Pacific 
in  California.  Lurton  continued  in  practice  until  appointed 
a  State  Chancellor  in  1875  m  which  judicial  office  he  served 
three  years. 

In  1878  he  resumed  law  practice  as  a  member  of  the  firm 
of  Baxter,  Lurton  and  Quarles.  The  Baxters  had  for  many 
years  represented  the  East  Tennessee  and  Virginia  Railroad, 
the  Western  Atlantic  Railroad  and  other  railroad  systems.21 
The  firm  of  Baxter,  Lurton  and  Quarles  were  attorneys  for 
the  Louisville  and  Nashville  Railroad;  considering  Lurton's 
later  decisions,  when  a  United  States  Circuit  Court  judge, 
regarding  damages  for  injuries,  it  is  worth  noting  that  one 
suit  that  the  firm  defended  upon  appeal  for  the  Louisville  and 
Nashville  Railroad  in  December,  1878,  was  an  action  brought 
by  a  wagon  driver  for  injuries.22  At  the  same  time  Lurton 
was  interested  in  banking  matters. 

20  Tennessee  Reports,  Vol.  54:  254-261. 

21  See,  Heiskell's  Tenn.  Reports,  Vols.  i  to  12. 

.  &  N.  R.  R.  vs.  Gardner,  I  Lea  (Tenn.)  Reports,  688. 


UNDER    CHIEF   JUSTICE    WHITE  719 

In  1884  Lurton  became  a  member  of  the  firm  of  Smith  and 
Lurton.  The  firm  had  previously  been  that  of  Smith  and 
Allison.  Ed.  Baxter  and  Smith  and  Allison  had  frequently 
appeared  for  the  Louisville  and  Nashville  Railroad.23  John 
and  W.  M.  Baxter  were  also  attorneys  for  the  Union  Con- 
solidated Mining  Company  -*  and  some  of  the  Baxters  were 
financially  interested  in  Tennessee  coal  mines. 

Lurton,  in  1886,  was  elected  a  judge  of  the  Supreme  Court 
of  the  State  of  Tennessee.  The  by  no  means  unusual  situa- 
tion was  now  seen  of  a  former  railroad  attorney  deciding 
cases  involving  the  interests  of  that  same  railroad.  If  ante- 
cedents of  this  character  had  been  regarded  as  a  positive  dis- 
qualification, few  judges  would  have  been  able  to  sit  in 
judgment;  the  courts  everywhere  were  full  of  judges  who  had 
been  former  railroad  attorneys. 

The  Lahr  Case. 

One  of  the  cases  decided  by  Judge  Lurton  was  the  suit  of 
J.  M.  Lahr  against  the  Louisville  and  Nashville  Railroad.  A 
carpenter  employed  by  the  railroad  company,  Lahr  was  work- 
ing on  a  high  railroad  trestle.  On  the  day  on  which  he  was 
injured,  Lahr  asked  his  foreman,  Ligar,  if  the  rope  used  for 
descending  purposes  was  all  right.  The  foreman  said  "  Yes." 
As  a  matter  of  fact,  the  rope  was  not  fastened  but  was  lying 
in  a  loose  coil  on  the  top  of  the  bridge.  When  Lahr  took 

23  See,  VIII  Heiskell's  Reports,  735 ;  VIII  Lea's  Reports,  439,  etc., 
and  XIV  Lea's  Reports,  130,  in  which  last-named  action  Baxter,  Smith 
and  Allison  and  John  H.  Henderson  represented  (1884)  the  Louisville 
and  Nashville  and  Great  Southern  Railway.     See,  also,  XII  Lea's  Re- 
ports, 574,  in  which  Smith  and  Allison  and  Edward  W.  Baxter  were 
attorneys  for  the  Louisville  and  Nashville  Railroad ;  XIV  Lea's  Reports, 
65,  in  which  Smith  and  Allison  appeared  for  the  same  railroad,  and 
X  Lea's  Reports,  58,  in  which  John   Allison,  Jr.,  and  W.   M.   Baxter 
represented  the  East  Tennessee,  Virginia  and  Georgia  Railroad.     Also, 
XII  Lea's  Reports,  35  and  47,  giving  W.  M.  Baxter's  appearance  for 
the  last-mentioned  railroad.    The  foregoing  appearances  were  between 
the  years  1881  and  1884. 

24  V  Lea's  Reports,  3. 


72O  HISTORY   OF   THE    SUPREME    COURT 

hold  of  it  to  descend  he  was  thrown  forty  feet  to  the  ground, 
and  a  number  of  his  bones  were  crushed.  He  brought  suit 
for  damages,  and  obtained  a  judgment  in  the  lower  courts. 

When  the  case  came  up  on  appeal,  Judge  Lurton,  on  Feb- 
ruary 4,  1888,  reversed  the  judgment  and  remanded  the  case 
for  a  new  trial.  This  he  did  on  the  "  fellow  servant "  doc- 
trine. The  railway  company,  said  Judge  Lurton,  was  in  no 
way  responsible ;  the  fault  was  the  foreman's,  and  the  foreman 
was  simply  a  fellow  servant  of  Lahr.  "  The  absence  of  suf^ 
ficient  proof,"  Judge  Lurton  said,  "  that  any  duty  rested  upon 
Ligar  to  see  to  the  means  of  descent  used  by  his  fellow  work- 
men, and  the  fact  that  Lahr  did  not  notify  Ligar  of  his  pur- 
pose to  descend,  and  that  the  proof  clearly  established  the 
fact  that  he  was  acting  under  no  immediate  orders  from  Ligar 
in  attempting  to  descend,  makes  the  case  one  of  mere  personal 
negligence  of  Lahr  for  which  the  master  is  not  responsible. 
In  other  words,  they  were  fellow  servants."  25 

The  irony  of  this  decision  lay  in  the  fact  that  if  Lahr  had 
not  kept  to  his  work  —  which  consisted  in  going  up  and  down 
the  bridge  —  he  would  have  been  discharged.  That  was  a 
part  of  his  work,  and  every  reasonable  construction  of  law  re- 
quired the  company,  through  the  foreman,  to  see  that  he  had 
safe  appliances. 

"  Pauper  Oath  "  Recommended. 

Another  such  case  decided  by  Judge  Lurton  (on  February 
17,  1891)  was  that  of  Smith  against  the  Louisville  and  Nash- 
ville Railroad.  The  action  was  one  for  damages  for  the 
death  of  a  parent  killed  on  the  railroad.  But  the  son  was 
very  poor,  and  could  not  give  bond  for  the  costs  of  the  suit. 
The  lower  court,  therefore,  would  not  allow  him  to  sue.  He 
applied  for  a  writ  of  error,  and  the  motion  came  before  Judge 

25  See,  Southwestern  Reporter,  Vol.  VI :  663-665. 


UNDER    CHIEF   JUSTICE    WHITE  721 

Lurton  who  held  that  no  suit  could  be  brought  where  there 
were  no  assets  to  bear  the  expense  of  the  suit.  When  dis- 
missing the  case,  Judge  Lurton  with  a  fine  delicacy  added : 
"  There  seems  to  have  been  no  point  made  upon  the  right  of 
the  administrator  to  prosecute  the  appeal  under  pauper  oath. 
The  point  ought  to  have  been  made,  but  was  not;  it  was, 
therefore,  not  decided."  26 

In  literal  law,  Lurton  was  doubtless  right,  but  this  case 
ranks  as  an  instructive  illustration  of  the  conscientious  pre- 
cision with  which  the  courts  construe  capitalist  law  against 
the  workers  In  the  previous  case,  that  of  Lahr,  Lurton  ap- 
plied the  most  "  liberal  construction  "  of  law  in  deciding  in 
favor  of  the  railroad  corporation.  In  this  case  the  last  letter 
and  dot  of  law  was  construed  with  granite  inflexibility  against 
a  destitute  worker.  The  railroad  had  killed  his  parent,  and 
because  of  this  he  was  left  penniless;  he  was  then  debarred 
from  suing  for  damages  since  "  he  had  no  assets  to  bear  the 
expense  of  the  suit."  Here  was  another  illustration  of  the 
sad  enough  fact  that  poverty  was  not  merely  a  crime;  it  was 
a  catastrophe. 

Slaughter  of  the  Workers. 

Judge  Lurton,  like  other  judges,  could  not  or  did  not  care 
to  see  the  ravaged,  broken-up  homes  of  the  workers,  deso- 
lated by  premature  and  clearly  preventable  death,  and  the 
appalling  misery  following  the  slaughter  of  the  toilers  upon 
whom  the  maintenance  of  those  homes  depended. 

The  annual  carnage  of  the  workers  on  railroads  and  in 
factories  and  mines  was  truly  dreadful,  and  more  destructive 
than  the  most  sanguinary  wars  mankind  has  known.  If  any- 
thing, working  conditions,  thanks  to  the  insistence  of  the 
workers,  were  a  shade  better  in  1908  than  in  previous  decades. 

26  Southwestern  Reporter,  Vol.  XV :  p.  842. 


722  HISTORY    OF   THE    SUPREME   COURT 

But  still  they  were  so  abominable  that  between  30,000  and 
35,000  adult  wage  workers  were  slain  every  year,  and  not 
less  than  2,000,000  workers  were  annually  injured.  This 
estimate,  a  conservative  one  as  the  Federal  report  expressly 
says,  took  no  account  of  women  and  child  workers.27  Nor  did 
it  include  the  vast  number  of  disabilities,  diseases  and  deaths 
indirectly  caused  by  the  processes  of  capitalist  industry. 

Intrenching  themselves  behind  their  law  books,  the  judges 
professed  not  to  see  these  frightful  and  hideous  conditions; 
and  they  insisted  that  their  sole  function  was  to  construe  law 
as  they  found  it.  A  plausible  enough  defense,  if  it  had 
not  happened  that  as  attorneys  nearly  all  of  them  had  repre- 
sented railroad  and  other  corporations  which  had  savagely 
fought  every  attempt  of  the  workers  to  better  their  condi- 
tions, and  which  regarded  the  immolation  of  men,  women 
and  children  as  of  no  consequence  so  long  as  it  did  not  inter- 
fere with  the  flow  of  profits. 

The  foregoing  are  examples  of  cases  decided  by  Judge 
Lurton  when  on  the  Supreme  Court  of  Tennessee.28  But  Lur- 
ton  did  not  invariably  decide  in  favor  of  his  former  clients,  the 
Louisville  and  Nashville  Railroad.  In  a  minor  case,  Judge 
Lurton's  decision  was  adverse  to  that  corporation.  But  the 
evidence  in  this  case  was  incontrovertible,  and  moreover  the 
suit  was  not  brought  by  a  private  person  but  by  the  State 
of  Tennessee.  It  involved  the  question  of  whether  the  rail- 
road company  could  be  fined  $50  for  obstructing  a  highway. 
Lurton  affirmed  the  judgment  of  the  lower  court. 

"See,  Bulletin  No.  78,  Sept.,  1908,  U.  S.  Bureau  of  Labor.  The 
report  explains  that  it  would  have  been  possible  to  save  at  least  one- 
third  or  one-half  of  these  lives  by  rational  methods  of  factory  inspec- 
tion and  control. 

28  See,  also,  Louisville  and  Nashville  Railroad  vs.  Mossman,  XVI 
Southwestern  Reporter,  64.  In  the  lower  court  Mossman  had  recov- 
ered damages  for  overflow  of  his  lands  caused  by  the  railroad's  high 
embankment.  Judge  Lurton  reversed  that  decision  on  the  ground  that 
by  long  usage  the  railroad  company  had  acquired  by  prescription  the 
right  to  flow  back  the  water  upon  the  adjoining  land. 


UNDER   CHIEF   JUSTICE   WHITE  723 

Lurton  Becomes  a  Circuit  Judge. 

In  1893,  President  Cleveland  appointed  Lurton  a  Judge  of 
the  United  States  Circuit  Court,  Sixth  Circuit,  embracing 
Ohio,  Kentucky,  Tennessee  and  adjacent  territory.  On  the 
Circuit  Court  at  Cincinnati,  Taft  and  Lurton  were  associated 
on  the  Bench,  and  became  intimate  friends. 

Decisions  favorable  to  corporations  were  constantly  handed 
down.  One  decision  arousing  much  comment  was  that  in 
the  case  of  Hunter  vs.  the  Kansas  City  and  Missouri  Railroad 
Company.  Hunter  was  a  laborer  engaged  to  set  up  poles 
along  the  company's  lines.  The  boss,  Bob  Snowdon,  slipped 
while  the  pole  was  being  placed  in  a  hole,  the  pole  fell  and 
knocked  down  Hunter,  seriously  injuring  him.  Judge  Lur- 
ton decided  (February  8,  1898,)  that  Snowdon  had  slipped 
because  the  work  had  to  be  done  in  a  slippery  place,  and  that 
there  was  no  evidence  that  Snowdon  was  at  fault ;  he  "  slipped 
because  of  the  slippery  character  of  the  ground."  29 

James  M.  Hennessy  was  the  foreman  of  a  switching  crew 
in  the  Chesapeake  and  Ohio  Railroad  Company's  yards  at 
Russell,  Kentucky.  While  coupling  cars,  he  was  severely 
injured.  He  sued,  and  was  awarded  damages  in  the  lower 
courts. 

The  railroad  company  appealed.  This  appeal  came  up  before 
Circuit  Judges  Taft  and  Lurton  and  District  Judge  Clark 
on  October  3,  1899.  Lurton  wrote  the  Court's  decision,  twist- 
ing Taft's  decision  in  a  previous  case  so  as  to  cover  this  case. 
The  United  States  safety-appliance  law  clearly  provided  that 
no  railroad  company  should  use  cars  with  defective  couplings. 
This  being  so,  Lurton's  findings  were  received  with  amaze- 
ment. Lurton  wrote  in  his  decision  that  Hennessy  knew 
that  the  great  majority  of  cars  on  the  repair  tracks  were  de- 
fective and  that  to  get  cars  from  the  tracks  was  a  part  of 
Hennessy's  duty.  "  Manifestly,"  Judge  Lurton  continued, 

29  85  Federal  Reporter,  379. 


HISTORY   OF   THE   SUPREME   COURT 

"  his  duty  involved  the  handling  of  cars  not  fitted  for  use, 
and  dangers  not  incident  to  the  ordinary  work  of  one  engaged 
in  the  ordinary  operation  of  trains  of  cars."  In  such  a  case, 
Lurton  declared,  a  man  voluntarily  assumed  risk.  Lurton 
reversed  the  judgment  of  the  lower  court.30 

Constitutional  Right  to  be  Killed. 

Here  was  seen  the  beautiful  finesse  of  court  decisions. 

If  the  railroad  workers  had  gone  on  strike  against  having 
to  handle  unsafe  cars  (which  cars  the  law  prohibited)  troops 
would  probably  have  been  ordered  out  against  them.  Every 
capitalist  newspaper  would  have  distorted  and  denounced  the 
purposes  of  the  strike.  If  all  railroad  workers  had  declined 
to  risk  mangling  and  death  by  handling  stich  cars,  the  railroads 
could  not  have  been  operated ;  bondholders  and  stockholders 
do  not  operate  railroads.  In  such  a  case  scabs  and  thugs 
would  have  been  imported  to  break  the  strike. 

By  consenting  to  take  unsafe  jobs  and  handling  obsolete  cars 
the  workers  were  doing  an  immense,  although  unappreciated, 
favor  to  the  railroad  corporations,  which  in  order  to  increase 
their  profits,  were  ready  at  all  times  to  avoid  going  to  expense 
in  equipping  cars  with  safety  appliances.  But  Judge  Lurton 
steps  in  and  lays  down  the  wonderful  doctrine  that  a  worker 
has  the  perfect  right  to  be  mangled  or  killed.  The  constitu- 
tionality of  this  right  has  never  yet  been  questioned  by  those 
who  have  evinced  such  solicitude  that  the  Constitution  should 
not  be  violated. 

Of  this  "  constitutional  right "  of  the  workers  to  get 
killed,  Judge  Lurton  was  one  of  the  most  conspicuous  ex- 
ponents. There  was  the  case  of  John  T.  Hazlerigg,  whose 
arm  was  crushed  while  coupling  cars  on  the  Norfolk  and 
Western  Railroad  at  Williamson,  Virginia.  Hazlerigg  was 
taken  to  the  railroad's  hospital  where  his  arm  was  amputated, 

3096  Federal  Reporter,  713. 


UNDER    CHIEF   JUSTICE    WHITE  725 

and  where  he  remained  five  or  six  weeks.  During  the  worst 
period  of  his  suffering,  an  agent  of  the  railroad  generously 
persuaded  him  to  sign  an  absolute  release  for  all  damage  claims 
in  consideration  of  giving  him  $25  in  cash,  a  pass  over  the  rail- 
road and  $2.75  for  further  transportation. 

When  Hazlerigg  left  the  hospital  he  realized  how  for  a 
wretched  $27.75  Pal^  f°r  tne  l°ss  °f  an  arm>  tne  railroad 
company  had  wheedled  him  into  signing  a  release.  He 
brought  suit.  When  he  had  signed  the  paper,  he  testified,  he 
was  destitute  of  money,  had  no  job  and  no  suitable  clothing, 
and  was  worn  down  by  suffering  and  by  a  malady  which  af- 
fected his  mind.  He  did  not  read  the  paper,  he  stated,  and 
did  not  know  what  he  was  doing  when  he  signed  it. 

The  jury  in  the  lower  court  awarded  Hazlerigg  damages, 
but  when  the  railroad  appealed,  Judge  Lurton  set  aside  the 
judgment,  on  the  ground  that  "  there  was  no  evidence  to  sup- 
port Hazlerigg's  statements,"  and  that  the  jury  should  have 
been  told  that  Hazlerigg  was  possibly  guilty  of  "  contributory 
negligence." 

Judge  Lurton  stanchly  defended  the  right  of  Hazlerigg  "  to 
quit  his  job  ";  to  Lurton  this  was  a  precious  privilege  of  which 
no  worker  should  be  deprived  (when,  of  course,  he  did  it 
"individually"  and  not  in  mass).  But  if  the  worker,  com- 
pelled to  remain  at  his  perilous  duty  by  want,  did  not  quit 
but  was  forced  by  the  same  stern  necessity  to  disregard  the 
dangerous  condition  of  the  cars,  then  he  became  guilty  of 
"  contributory  negligence,"  "  voluntary  assumption  of  risk,''  a 
"  fellow  servant "  accomplice  and  other  theoretical  offenses, 
all  devised  for  the  special  fine-spun  purpose  of  relieving  capi- 
talists from  the  necessity  of  paying  damages  to  mangled 
workers  who  had  produced  their  profits. 

This  was  the  species  of  "  law  "  inflicted  on  the  working  class, 
especially  upon  its  most  helpless  members ;  and  being  so,  it  is 
not  astonishing  that  the  workers  should  have  regarded  "  la\y  M 
as  a  terrific  and  cruel  instrument  of  tyranny. 


726  HISTORY   OF   THE   SUPREME   COURT 

The  Delk  Case. 

But  perhaps  the  decision  in  the  case  of  E.  M.  Delk  was 
the  most  flagrant  of  all  of  Judge  Lurton's  decisions. 

Delk  was  a  switchman  on  the  St.  Louis  and  San  Francisco 
Railroad;  he  was  thirty  years  old  in  1906,  had  been  working 
on  railroads  since  he  was  a  lad,  was  receiving  $80  a  month 
pay,  was  married  and  had  a  child. 

On  October  4,  1906,  while  Delk  was  switching  certain  cars 
out  of  a  string  of  nine  freight  cars  at  Memphis,  a  car  with  a 
defective  coupler  broke  loose.  Delk's  foot  was  cruelly  mashed. 
Delk  brought  suit  and  was  awarded  $7,500  damages  by  a  jury. 
But  the  trial  judge  compelled  him  to  remit  $2,500  of  this 
amount  or  be  forced  to  go  through  a  new  trial ;  this  deduc- 
tion reduced  the  judgment  to  $5,000.  We  shall  now  further 
quote  one  of  Delk's  attorneys,  T.  F.  Kelly  of  Memphis: 

"  Delk  is  a  man  of  meager  education  and  knows  nothing 
except  railroading  having  been  in  the  railroad  service  about 
sixteen  years. 

"  He  was  blacklisted  by  the  railroad  companies  of  Mem- 
phis after  he  brought  suit,  and  none  of  them  would  give  him 
a  job  because  he  had  entered  suit  against  one  of  the  roads. 
Of  course  he  could  not  pass  an  examination  under  the  rigid 
rules  now  in  force,  as  he  has  only  one  good  foot." 

The  railroad  company  appealed  from  the  judgment  of  the 
lower  court  in  favor  of  Delk.  The  appeal  came  before  Judges 
Lurton,  Severans  and  Richards  in  the  United  States  Circuit 
Court  of  Appeals,  on  March  3,  1908. 

An  Amazing  Decision. 

Lurton  and  Severans  each  wrote  opinions  in  favor  of  the 
company,  reversing  the  lower  court's  judgment.  They  said 
that  it  seemed  unjust  and  unreasonable  to  say  that  having  ful- 
filled its  utmost  duty  the  railroad  company  should  be  held  re- 


UNDER    CHIEF   JUSTICE    WHITE  727 

sponsible  for  conditions  which  might  occur  without  its  fault. 
Judge  Richards  handed  down  an  indignant  dissenting  minority 
opinion,  concluding  thus :  "  A  car  loaded  and  being  used  in 
interstate  traffic  was  found  with  a  defective  coupler.  The  car 
was  marked  '  In  Bad  Order,'  and  a  repair  piece  sent  for. 
After  thus  being  notified  of  its  condition,  the  car  should  have 
been  withdrawn;  but  it  was  not,  and  the  company  kept  mov- 
ing it  about  in  connection  with  other  cars,  and  finally  ordered 
the  injured  employe  to  couple  it  to  another  car.  This  he  tried 
to  do,  with  the  natural  result,  and  he  was  crippled  for  life. 
The  case  amply  justifies  the  verdict  and  the  judgment  should 
be  affirmed."  31 

The  decision  of  Lurton  and  Severans  caused  the  utmost  as- 
tonishment among  non-corporation  lawyers.  Such  was  the 
amazement  over  the  decision  in  the  Delk  case  that  the  Supreme 
Court  of  the  United  States,  shortly  after,  took  particular  pains 
to  disapprove  of  it  in  strong  language,  although  the  Delk  case 
was  not  then  before  it.  In  deciding  the  parallel  case  of  the  St. 
Louis  and  Iron  Mountain  Railway  Co.  vs.  Taylor,  Justice 
Moody  in  writing  the  Court's  opinion  referred  to  the  Delk  de- 
cision and  wrote: 

"  In  deciding  the  questions  thus  raised  upon  which  courts 
have  differed  (St.  Louis  &  S.  F.  Railroad  vs.  Delk,  158  Fed. 
Rep.,  931),  we  need  not  enter  into  the  wilderness  of  cases  upon 
the  common-law  duty  of  the  employer  to  use  reasonable  care 
to  furnish  his  employe  reasonably  safe  tools,  machinery  and 
appliances,  or  to  consider  when  and  how  far  that  duty  may 
be  performed  by  delegating  it  to  suitable  persons  for  whose 
default  the  employer  is  not  responsible.  .  .  .  The  Con- 
gress not  satisfied  with  the  common-law  duty  and  its  resulting 
liability,  has  prescribed  and  defined  the  duty  by  statutes.  We 
have  nothing  to  do  but  to  ascertain  and  declare  the  meaning 
of  a  few  simple  words  in  which  the  duty  is  described.  It  is 
enacted  that  '  no  cars,  either  loaded  or  unloaded,  shall  be  used 

31  158  Federal  Reporter,  931. 


728  HISTORY   OF   THE    SUPREME   COURT 

in  interstate  commerce  traffic  which  do  not  comply  with  the 
standard.' 

"  There  is  no  escape  from  the  meaning  employed  to  confuse 
them  or  lessen  their  significance.  ...  If  the  railroad  does, 
in  point  of  fact,  use  cars  which  do  not  comply  with  the  stand- 
ard, it  violates  the  plain  prohibition  of  the  law,  and  there 
arises  from  that  violation  the  liability  to  make  compensation 
to  one  who  is  injured  by  it."  32 

After  the  Supreme  Court  of  the  United  States  had  expressed 
this  sharp  opinion,  Delk's  attorney  on  June  27,  1908,  made  a 
motion  in  the  Circuit  Court  of  Appeals  that  the  case  be  re- 
heard, but  Judge  Lurton  and  Severans  curtly  refused  without 
stating  any  reason.  Judge  Richards  again  indignantly  dis- 
sented from  their  stand.  Delk's  lawyer  then  appealed  the  case 
to  the  Supreme  Court  of  the  United  States. 

The  crippling  of  Delk  happened,  as  we  said,  on  October  4, 
1906.  More  than  four  years  had  passed,  and  Delk  had  not 
been  able  to  collect  a  single  cent  in  damages.  For  nearly  a 
year  and  a  half  after  the  accident,  Delk  had  been  unable  to  do 
any  work  whatever.  Blacklisting  then  followed.  Finally  he 
obtained  a  job  as  crossing  flagman  at  a  salary  of  about  $35 
a  month,  on  which  he  had  to  support  himself  and  family.  Al- 
though he  did  not  lose  his  foot  entirely,  yet  we  are  informed 
he  would  have  been  far  better  off  without  that  mangled  rem- 
nant ;  so  badly  was  the  foot  crushed  that  it  keeps  him  in  con- 
tinual pain,  and  may  yet  possibly  result  in  his  death. 

Supreme  Court  Reverses  the  Decision. 

Delk's  attorney,  T.  F.  Kelly,  appealed  from  Lurton  and  Sev- 
erans' decision  to  the  Supreme  Court  of  the  United  States. 
When  this  appeal  was  heard  in  1911,  Justice  Lurton  was  a 
member  of  that  Court,  but  he  did  not  participate  in  the  decision. 
The  railroad  company  fought  the  appeal  stubbornly,  and  was 

32  210  U.  S-  Reports,  294. 


UNDER    CHIEF   JUSTICE    WHITE  729 

represented  by  many  attorneys  from  different  parts  of  the 
country.  But  the  facts  and  the  law  were  too  strong  for  them. 
By  an  unanimous  decision  the  Supreme  Court  of  the  United 
States  reversed  the  Circuit  Court  of  Appeals  decision  of  Judges 
Lurton  and  Severans,  and  affirmed  the  verdict  of  the  trial  court 
in  favor  of  Delk. 

The  corporation  contesting  so  many  similar  cases  was  (to 
repeat)  the  Louisville  and  Nashville  Railroad.  This  was  the 
identical  corporation  which  was  the  prime  mover  in  having 
various  labor  laws  declared  unconstitutional.  These  were  laws 
such  as  the  twenty-eight  hour  law,  the  employers'  liability  law 
and  other  measures  that  after  many  years  of  agitation  labor 
organizations  had  succeeded  in  getting  passed,  only  to  find 
them  thrown  out  by  the  courts.  The  case  of  Adair  vs.  the 
United  States  (described  in  a  previous  chapter)  in  which  the 
Supreme  Court  of  the  United  States  declared  it  to  be  legal  for 
a  corporation  to  blacklist  an  employe  (while  other  decisions 
held  that  it  was  illegal  for  a  labor  organization  to  boycott  an 
employer)  was  instigated  by  the  Louisville  and  Nashville  Rail- 
road. 

A  Decision  Pleasing  to  Harriman. 

Judge  Lurton's  decisions  were  uniformly  favorable  to  big 
corporations.33  A  particularly  noted  example  was  in  the  case 
of  Talbot  J.  Taylor,  representing  the  interests  of  James  J. 
Keene,  a  Wall  Street  "  bear  "  operator.  This,  it  is  true,  was 
only  a  contest  of  capitalist  groups,  and  Lurton's  decision  would 
nominally  deserve  no  serious  criticism  were  it  not  that  when 
deciding  against  maimed  and  mangled  wage  workers,  he  con- 
tended that  he  was  only  construing  law.  Taylor,  in  1903, 
brought  an  action  to  restrain  the  magnate  Harriman  from 
voting  $90,000,000  of  stock  held  by  the  Union  Pacific  Railroad. 

33  See  Case  of  L.  &  N.  R.  R.  vs.  Central  Trust  Co.,  87  Federal  Re- 
ports, 502,  in  which  Lurton  and  Severans  decided  in  favor  of  the  rail- 
road, and  other  cases. 


73°  HISTORY   OF   THE   SUPREME   COURT 

The  Keene  group  held  $30,000,000  of  Southern  Pacific  stock, 
and  if  the  Union  Pacific's  $90,000,000  of  Southern  Pacific 
stock  had  been  tied  up  by  injunction,  Keene's  $30,000,000  of 
stock  would  have  controlled  the  annual  meeting  of  the  Southern 
Pacific. 

Judge  Lurton  finally  decided  that  the  combination  of  the  two 
Pacific  railroads  in  issue  was  not  a  violation  of  the  Sherman 
anti-Trust  Act.  This  notwithstanding  the  fact  that  the  Su- 
preme Court  of  the  United  States  only  a  short  time  previously 
had  decided  that  a  merger  of  the  Great  Northern  Railroad  and 
the  Northern  Pacific  Railroad  was  illegal  and  had  ordered  it 
dissolved. 

Following  this  decision  in  favor  of  Harriman,  came  those 
stupendous  stockjobbing  frauds,  some  of  which  we  have  al- 
ready, in  a  previous  chapter,  cited  from  the  Interstate  Com- 
merce Commission's  report,  and  largely  by  means  of  which 
Harriman,  after  beginning  his  career  with  nothing,  acquired 
an  immense  fraudulent  fortune.34 

Harriman's  Great  Frauds. 

The  story  of  these  vast  frauds  is  so  extensive  that  it  cannot 
even  be  summarized  here.  Every  new  output  in  watered  stock 
was  followed  by  a  new  taxation  of  the  workers  in  the  form 
of  increased  freight  rates,  which,  of  course,  added  enormously 
to  the  cost  of  living.  At  the  same  time  wages  remained  gen- 
erally stationary,  or  were  reduced.  When  Harriman  died  his 
estate  was  at  first  appraised  at  $149,000,000,  but  on  later  ex- 
amination was  found  to  be  much  more. 

During  the  perpetration  of  his  stockjobbing  frauds,  Harri- 

34  Keene  was  conducting  a  manipulating  campaign  to  get  control  of 
the  Southern  Pacific  Railroad.  In  detailing  the  secret  circumstances  the 
New  York  Times,  issue  of  December  11,  1907,  concluded:  ".  .  . 
There  is  little  doubt  that  the  refusal  of  Judge  Lurton  to  make  the  tem- 
porary injunction  permanent  was  a  source  of  no  small  relief  to  Mr. 
Harriman  and  his  associates,  despite  the  precautions  which  they  took  to 
make  the  injunction  nugatory,  had  it  been  granted." 


UNDER    CHIEF   JUSTICE    WHITE  73! 

man  was  the  head  of  an  immense  system  of  corruption.  In  a 
statement  published  on  January  2,  1908,  Francis  J.  Heney, 
who  had  closely  prosecuted  political  corruptionists  on  the  Pa- 
cific coast,  declared  that  not  W.  F.  Herrin  but  Harriman  was 
the  real  power  in  the  corruption  of  officials.  "  According  to 
my  deduction,"  said  Heney,  "  the  head  of  the  legal  department 
of  the  Union  Pacific  Railroad,  W.  F.  Herrin,  was  the  boss 
behind  the  apparent  boss  [Ruef,  the  political  boss  of  San  Fran- 
cisco]. But  I  am  convinced  that  Herron  was,  after  all,  the 
tool  of  the  actual  boss,  Harriman."  We  have  also  seen  how, 
in  his  historic  letter  to  Sidney  Webster,  Harriman  alleged  how 
after  being  summoned  to  the  White  House  by  President  Roose- 
velt in  the  closing  days  of  the  1904  campaign,  when  Roosevelt 
was  running  for  reelection,  he  (Harriman)  returned  to  New 
York  to  raise  a  campaign  fund  of  $260,000  by  which  "  at  least 
50,000  votes  were  turned  in  the  city  of  New  York,  making  a 
difference  of  100,000  votes  in  the  general  result."  35  Harri- 
man's  personal  contribution  to  this  fund  was  $50,000. 

Did  Lurton  Use  Private  Cars? 

During  the  years  preceding  the  passage  of  the  Hepburn  Act 
of  1906  which  prohibited  traveling  on  free  railroad  passes, 
Judge  Lurton  acquired  the  singular  name  of  "  Private-Car 
Lurton."  Whence  the  significance?  It  was  repeatedly 
charged  in  the  newpapers,  and  not  denied,  that  Lurton  was  one 
of  the  Federal  judges  traveling  extensively  in  sumptuous  pri- 
vate cars  supplied  by  the  railroads.  The  allegation  was  also 

35  In  a  letter,  dated  December  15,  1911,  to  Theodore  Roosevelt,  George 
R.  Sheldon,  treasurer  of  the  Republican  National  Committee,  gave  a 
different  version  of  this  affair.  Sheldon  stated  that  it  was  Odell,  Chair- 
man of  the  Republican  State  Committee  of  New  York,  and  not  Roose- 
velt, who  appealed  to  Harriman  for  aid  through  Cornelius  N.  Bliss,  then 
Treasurer  of  the  Republican  National  Committee,  and  that  Harriman 
then  raised  $160,000  which  with  $80,000  raised  by  Bliss,  was  given  di- 
rectly to  Odell.  When  this  letter  was  published,  Odell  declined  to  make 
any  statement. 


732  HISTORY  OF   THE   SUPREME   COURT 

frequently  published  that  at  one  time  a  receivership  action 
brought  the  question  of  the  management  of  a  certain  railway 
before  Judge  Lurton.  According  further  to  this  allegation, 
Lurton  indicated  his  desire  for  a  private  car  and  the  receiver 
complied.  Necessarily  there  is  no  proof  of  this  charge,  or 
similar  charges,  in  the  formal  records.  Therefore,  we  do  not 
pretend  to  vouch  for  their  authenticity,  but  simply  relate  them 
for  what  they  may  be  worth,  true  or  false.  But  the  report  of 
Lurton's  habitual  use  of  private  cars  caused  so  much  comment 
that  even  the  Memphis  News-Scimitar,  a  newspaper  friendly 
to  Lurton,  frequently  published  caustic  remarks  on  Lurton's 
alleged  receipt  of  such  favors  from  railroad  corporations.36 

"  He  is  a  man  of  ability  and  forcefulness  and  the  graduate 
of  a  shrewd  school  in  politics,"  commented  this  newspaper  on 
one  occasion.  "  During  his  career  as  a  judge  he  has  been 
much  criticised  for  his  leaning  toward  corporations  litigant  be- 
fore him.  It  has  been  urged  against  him  that  during  his 

36  Other  Federal  judges  were  accused  of  the  same.  On  January  26, 
1906,  the  Kansas  City  Times,  related,  in  an  obscure  and  perfunctory 
news  item,  that  Gardiner  Lathrop,  general  solicitor  of  the  Santa  Fe 
Railroad  system,  had  taken  a  party  of  friends  on  a  tarpoon  fishing  expe- 
dition to  Mexico.  Among  those  availing  themselves  of  this  free  excur- 
sion on  the  railroad's  cars  were  Judge  John  C.  Pollock,  U.  S.  District 
Judge  for  Kansas ;  Judge  John  F.  Phillips,  U.  S.  District  Judge  for  the 
western  district  of  Missouri,  and  Judge  Smith  McPherson,  U.  S.  District 
Judge  for  the  southern  district  of  Iowa.  The  judges  did  not  deny  taking 
the  trip. 

At  the  time  these  Federal  judges  accepted  these  railroad  favors  the 
constitutionality  of  the  railway  freight  and  passenger  rate  reduction,  as 
recently  passed  by  the  Missouri  Legislature,  was  before  the  Federal 
Courts.  On  June  14,  1005,  the  date  when  that  law  was  to  go  into  effect, 
Judges  Phillips  and  McPherson  later  granted  a  temporary  injunction 
against  the  enforcement  of  that  law.  After  the  return  of  the  party 
from  the  fishing  trip,  Judge  McPherson  arbitrarily  enjoined  the  rail- 
roads from  obeying  the  new  passenger  and  freight  rate  law.  In  a  series 
of  acts,  Judge  Phillips  endorsed  Judge  McPherson's  action  which  was 
also  subsequently  affirmed  by  Judge  Pollock. 

Representative  Murphy,  of  Missouri,  preferred  charges  in  Congress 
against  Judges  Phillips  and  McPherson,  and  Representative  Rucker  of 
the  same  State  declared  that  Judge  Phillips  should  have  been  impeached 
twenty  years  previously.  But  no  impeachment  proceedings  were  ever 
brought. 


UNDER    CHIEF   JUSTICE    WHITE  733 

judgeship  he  has  been  the  notable  recipient  of  distinguished  fa- 
vors from  corporations.  He  has,  for  instance,  been  wont  to 
travel  during  his  vacations  upon  the  private  cars  of  various 
railroads  of  the  country,  with  all  available  courtesies  and  privi- 
leges extended  with  lavish  hand  to  himself  and  party." 

In  a  previous  chapter  we  have  described  at  some  length  the 
contest  among  different  groups  of  great  capitalists  either  to 
retain  or  secure  control  of  the  vast  assets  of  the  three  principal 
life  insurance  companies  of  New  York.  We  have  also  given 
details,  as  disclosed  by  the  investigation  of  the  New  York 
Legislative  Committee,  of  the  corruption  enormities  systemat- 
ically carried  on  by  those  companies. 

Through  his  partner,  George  W.  Perkins,37  J.  Pierpont  Mor- 
gan, with  his  enormous  ownership  or  control  of  railroad  and 
steamship  lines,  banks  and  trusts  of  many  kinds,  had  long  been 
able  to  sway  the  great  revenues  of  the  New  York  Life  Insur- 
ance Company.38  It  may  here  be  mentioned  that  one  of  the 
many  railroads  controlled  by  Morgan  has  been  the  Louisville 
and  Nashville  Railroad.39  Through  his  instrument  Hyde,  the 
freebooter  Harriman  partially  controlled  the  Equitable  Life 
Assurance  Society;  and  the  Standard  Oil  Company  ruled  the 
Mutual  Life  Insurance  Company.  These  and  other  vast  pluto- 
cratic interests  had  used  immense  sums  of  the  policy  holders' 
money  to  finance  their  trust  and  manipulating  operations,  not 
omitting  to  enter  into  "  side  agreements  "  by  which  fraudulent 
methods  they  pocketed  large  personal  profits.  Starting  in  the 
Equitable  Life  Assurance  Society,  these  capitalist  groups  be- 

37  For  a  considerable  time  before  becoming  a   partner   of  Morgan, 
Perkins  was  vice-president  of  the  New  York  Life  Insurance  Company. 

38  At  the  present  writing  it  is  estimated  that  the  stupendous  sum  of 
$500,000,000  of  money  is  deposited  with  the  firm  of  J.  P.  Morgan  and 
Company.     Morgan  is  a  director  of   sixty-one  corporations   many  of 
which,  such  as  the  Steel  Trust,  deposit  their  cash  balances  with  his  firm. 
His  financial  power  is  inconceivably  vast.    His  banking  firm  is  a  purely 
private  concern,  and  as  such  is  not  subject  to  the  supervision  of  State, 
Government  or  any  other  authority. 

30  Moody's  "  The  Truth  About  The  Trusts,"  434. 


734  HISTORY   OF   THE    SUPREME   COURT 

gan  to  fight  one  another  for  control  of  the  booty ;  and  Thomas 
F.  Ryan,  who  needed  the  insurance  funds  to  finance  his  rubber 
and  other  trusts,  hastened  forward  to  take  a  hand  in  the  fray 
and  see  if  he  could  not  gobble  one,  and  perhaps  two,  of  the 
big  insurance  companies. 


The   Contest   for   Control. 

What  the  actual  result  was  is  told  in  the  next  chapter.  Here 
it  is  only  necessary  to  deal  with  the  contest  for  the  possession 
of  the  New  York  Life  Insurance  Company.  An  "  Interna- 
tional Policyholders'  Committee  "  was  formed  to  oust  the  par- 
ticular capitalists  in  control  of  the  New  York  and  the  Mutual 
Life  Insurance  Companies.  The  slogan  of  this  committee  was 
that  the  investigation  has  show'n  the  "  ins  "  to  be  thoroughly  cor- 
rupt, and  a  salutary  "  purifying  process  "  was  required.  Who 
it  was  that  supplied  the  great  sum  —  said  to  have  been  at  least 
$250,000  —  that  the  committee  expended  in  its  campaign,  was 
never  disclosed.  The  name  of  Thomas  F.  Ryan  was  confi- 
dentially mentioned,  but  there  is  no  available  proof  that  he  was 
the  individual.40 

In  voting  for  the  trustees  of  the  New  York  Life  Insurance 
Company  each  policy  holder  has  a  right  to  vote.  How  this 
provision  was  long  fraudulently  evaded  we  have  previously 
described  in  the  case  of  the  Mutual  Life  Insurance  Company. 
Of  the  immense  number  of  policy  holders  throughout  the 
world,  obviously  only  a  few  can  vote  in  person.  Each  of  the 
groups  contending  for  control  of  the  New  York  Life  Insurance 
Company  put  up  a  trustee  ticket,  and  the  contest  narrowed  to 
a  question  as  to  which  could  secure  the  most  proxies. 

40  In  its  circular  the  "  International  Policyholders'  Committee "  de- 
nounced as  a  falsehood  the  charge  that  it  was  a  "  Ryan  Committee." 
This  committee  called  upon  all  policyholders  to  defeat  the  "  present 
discredited  managements,"  and  install  men  in  their  places  "  who  will 
now  and  forever  separate  these  companies  from  Wall  Street  control." 


UNDER    CHIEF   JUSTICE    WHITE  735 

Lurton  on  the  Proxy  Committee. 

One  of  the  men  whose  name  was  brought  forward  as  a  can- 
didate for  trustee  on  the  Morgan  "  administration  ticket "  was 
Judge  Horace  H.  Lurton.  The  fact  that  a  judge  of  the  United 
States  Circuit  Court  was  thus  openly  acting  as  an  agent  in  this 
contest  caused  no  inconsiderable  scandal.  It  was  regarded 
as  politic  to  withdraw  Lurton's  name  from  the  trustee  ticket. 
He  was  then  placed  on  a  committee  of  three,  composed  of  him- 
self, Rowland  G.  Hazard  and  Alba  J.  Johnson,  to  solicit  and 
handle  proxies  for  the  New  York  Life  Insurance  Company 
election.41  The  "  administration  "  trustee  ticket  was  composed 
largely  of  such  capitalists  or  dependents  of  big  capitalists,  as 
Thomas  P.  Fowler,  president  of  the  New  York,  Ontario  and. 
Western  Railroad ;  Clarence  H.  Mackay,  president  of  the  Com- 
mercial Cable  Company ;  Seth  M.  Milliken,  extensive  woolen 
manufacturer  and  director  in  many  banks ;  John  G.  Milburn, 
corporation  lawyer;  Alexander  E.  Orr,  General  Louis  Wag- 
ner, John  Reid,  Augustus  G.  Paine  and  others  —  twenty  in  all. 

Judge  Lurton's  serving  on  the  proxy  committee  aroused  an- 
other scandal  and  much  acidulous  comment.  The  election  for 
trustees  of  the  New  York  Life  Insurance  Company  was  held 
at  the  company's  main  office  on  December  16,  1906.  Confident 
that  they  had  mustered  a  majority  of  the  proxies,  the  "  Inter- 
national Policyholders'  Committee  "  were  astounded  at  what 
they  now  witnessed.  Judge  Lurton  had  come  on  direct  from 
the  United  States  Circuit  Court  of  Cincinnati  to  assist  in 
voting  121,000  proxies  which  the  agents  of  the  company  had 
secretly  collected  all  over  the  world,  and  of  the  existence  of 

41  The  author  has  a  copy  of  the  published  "  administration  ticket  " 
circular  on  which  Lurton's  name  duly  appears ;  his  occupation  is  there 
described  as  "  Judge  of  the  United  States  Circuit  Court,  6th  District." 
Hazard  was  a  big  manufacturing  capitalist,  and  Johnson  was  a  member 
of  the  firm  of  Burnham,  Williams  and  Company,  proprietor  of  the 
Baldwin  Locomotive  Works  (now  controlled  by  J.  P.  Morgan)  in  which 
plants  the  workers  recently  struck,  although  unsuccessfully,  for  better 
working  conditions. 


736  HISTORY   OF   THE    SUPREME   COURT 

which  the  "  International  Policyholders'  Committee "  knew 
nothing.  These  and  other  proxies  were  voted  in  by  Hazard, 
Johnson  and  Lurten  for  the  so-called  Morgan  ticket.  The 
121,000  proxies  had  been  stored  in  the  New  York  Life  Insur- 
ance Company's  building.  Almost  as  fast  as  they  were  brought 
into  the  voting  room  in  wash-baskets,  boxes,  crates,  bags,  etc., 
Lurton  and  his  two  associates  would  take  the  bundles  and  vote 
them.42  It  is  needless  to  say  that  the  "  administration  ticket " 
won. 

Senator  Foraker,  Lurton's  Friend. 

It  can  be  authoritatively  stated  that  corporation  politicians 
urged  President  Roosevelt  to  appoint  Lurton  to  the  Supreme 
Court  of  the  United  States,  but  after  inquiring  into  Judge  Lur- 
ton's record,  Roosevelt  refused.  When  Taft  succeeded  Roose- 
velt, Lurton  succeeded  in  having  himself  appointed,  in  1909,  to 
the  seat  made  vacant  by  the  death  of  Associate  Justice  Peck- 
ham.  His  appointment  called  forth  a  storm  of  protests  from 
labor  unions  and  others.  There  was  considerable,  but  ineffec- 
tive, opposition  from  the  "  progressive  "  United  States  Senators 
to  the  confirmation  of  his  appointment.  Apart  from  Lurton's 
having  the  friendship  of  Taft,  his  former  colleague  on  the 
Bench,  Lurton's  chief  and  most  insistent  pusher  was,  it  was 
understood,  Senator  Joseph  B.  Foraker  of  Ohio  who  came  to 
his  rescue  at  the  crucial  moment. 

Foraker  was  a  noted  Ohio  politician  and  railroad  lawyer. 
So  thoroughly  did  he  control  the  Ohio  Legislature  at  one  time 
that  it  was  known  as  the  "  Foraker  Legislature."  He  tried  to 
give  the  street  railways  of  the  State  a  ninety-nine-years'  fran- 
chise with  exemption  from  taxation,  but  public  opposition 
frightened  the  politicians.  But  immediately  after  the  Ohio 
Legislature  had  elected  him  to  the  United  States  Senate,  For- 
aker did  push  through  that  Legislature,  in  April,  1896,  a  bill 

42  The  International  Policyholders'  Committee  charged  that  many  of 
these  proxies  were  fraudulent  and  invalid. 


UNDER    CHIEF   JUSTICE    WHITE  737 

authorizing  a  fifty-years'  franchise  to  various  consolidating 
street  railway  lines  in  Cleveland  and  in  Cincinnati.  Public 
uproar  and  adverse  decisions  of  the  lower  courts  availed  noth- 
ing; the  Legislature  passed  supplementary  acts,  and  the  higher 
court,  known  as  the  "  Foraker's  Court,"  held  the  franchise  to 
be  valid  in  Cincinnati.  Foraker  appeared  in  court  as  the  at- 
torney for  the  franchise  interests ;  when  the  decision  favoring 
them  was  given,  the  market  value  of  Cincinnati  traction  stock 
went  high,  and  the  "  inside  traction  ring,"  it  was  said,  netted 
many  millions  of  dollars.43  The  value  of  the  franchise  for  the 
Cincinnati  Traction  Company  alone  was  estimated  at  $10,000,- 
ooo.  Foraker's  son  was  long  vice-president  of  the  Cincinnati 
Traction  Company,  and  his  brother  was  its  counsel. 

Foraker  was  counsel  for  Morgan's  Southern  Railway  Com- 
pany, and  in  1896  sought  to  have  the  City  of  Cincinnati  sell  its 
holdings  in  the  "  Queen  and  Crescent  Railway  "  to  the  South- 
ern Railway  Company  for  a  comparatively  paltry  sum.  His 
proposition  was  rejected,  and  later  (in  1905)  Cincinnati  leased 
the  road  for  between  $300,000  and  $400,000  a  year  more  than 
the  interest  on  the  terms  that  Foraker's  proposal  would  have 
yielded.  In  the  United  States  Senate,  Foraker  was  notoriously 
pro-railroad.  Foraker's  direct  connection  with  John  D.  Arch- 
bold,  of  the  Standard  Oil  Company,  was  shown  when,  in  1908, 
authentic  copies  of  Archbold's  letters  were  produced.  In  one 
letter,  dated  December  n,  1900,  Archbold  sent  Foraker  a  cer- 
tificate of  deposit  of  $5,000,  and  in  another  letter  dated  Jan- 
uary 27,  1902,  Archbold  enclosed  a  draft  for  $50,000.  "  Your 
letter,"  wrote  Archbold,  "  states  the  conditions  correctly,  and 
I  trust  the  transaction  will  be  successfully  consummated."  The 
exact  nature  of  the  transaction  was  not  made  clear. 

Senator  Foraker  admitted  the  payments,  saying  that  he  had 
been  employed  by  the  Standard  Oil  Company  as  one  of  its 

43  It  was  charged  that  in  addition  to  his  stock  profits,  Foraker  received 
a  fee  of  $100,000.  This  he  denied,  saying  that  he  got  only  "  a  present 
of  $5,000"  from  an  officer  of  the  company. 


738  HISTORY   OF   THE    SUPREME   COURT 

counsel  in  Ohio,  but  denied  that  the  payments  had  anything  to 
do  with  legislation  in  Congress.  He  also  asserted  that  the  $50,- 
*ooo  payment  "  was  a  loan  to  a  newspaper,"  and  averred  that 
the  money  "  had  been  returned."  Archbold's  letter  also  showed 
that  for  years  United  States  Senator  Joseph  W.  Bailey,  of 
Texas,  had  been  a  retainer  of  the  Standard  Oil  interests. 

So  Lurton  went  on  the  Supreme  Court  Bench :  an  industrious 
but  by  no  means  learned  lawyer,  yet  by  his  big  boastful  talk 
giving  the  impression  that  he  was  a  giant  in  knowledge.  A 
small,  stout,  energetic  man,  very  irritable  and  excitable,  he  at 
no  time  took  pains  to  conceal  his  admiration  and  reverence  for 
wealth  and  for  the  master  capitalists.44 

44  When  Lurton's  appointment  was  made,  a  leading  member  of  the 
Nashville  bar,  John  J.  Vertrees,  one  of  the  most  prominent  attorneys 
for  many  years  for  the  Louisville  and  Nashville  Railroad,  the  Standard 
Oil  Company  and  other  corporations,  and  a  personal  friend  of  Lurton, 
said  of  Lurton :  "  In  these  days  judges  and  lawyers  are  apt  to  be  classi- 
fied under  two  heads ;  those  who  place  emphasis  on  property  rights,  and 
those  who  place  the  emphasis  on  personal  rights.  To  the  former  class 
belongs  Judge  Lurton." 

At  the  time  Ballinger,  Secretary  of  the  Interior  under  Taft,  was  under 
investigation  by  a  Hous^e  Committee  in  1910,  for  having,  according  to 
various  charges,  been  the  instrument  of  the  Morgan-Guggenheim  syn- 
dicate in  their  designs  upon  the  ^natural  resources  of  Alaska,  Taft  se- 
lected Vertrees  to  defend  Ballinger.  Subsequently  Ballinger  resigned. 


CHAPTER  XVIII 

THE    SUPREME    COURT    UNDER   CHIEF    JUSTICE    WHITE 
(CONTINUED) 

The  next  appointment  made  by  President  Taft  to  the  Su- 
preme Court  was  that  of  Charles  E.  Hughes  in  1910,  as  an 
Associate  Justice  to  succeed  Justice  Brewer  who  died  on 
March  28,  1910. 

Of  Justice  Brewer  we  shall  finally  remark,  in  passing,  that 
so  thoroughly  had  he  indoctrinated  law  in  accordance  with  the 
demands  of  capitalist  interests,  that  when  he  died  only  one 
progressive  decision  could  be  attributed  to  him  by  his  eulogists. 
This  was  the  decision  upholding  the  constitutionality  of  the 
Oregon  ten-hour  law  for  women.  This  law  the  Supreme 
Court  of  the  United  States  affirmed  on  the  principle  that  a 
State  could  constitutionally  protect  women  workers  so  as  to 
thus  conserve  the  future  of  the  race  and  the  general  welfare  of 
society. 

Born  in  1862,  Hughes  was  the  son  of  a  "  hard-shell  "  Bap- 
tist minister  and  was  of  the  same  denomination  himself.  After 
his  admission  to  the  bar,  he  became  a  clerk  in  the  law  office  of 
Chamberlain,  Carter  and'  Hornblower,  of  New  York  City. 

This  was  a  notable  corporation  firm ;  of  Walter  S.  Carter, 
one  of  its  members,  a  laudatory  biographical  account  says, 
"  Over  one  hundred  distinguished  lawyers  have  served  in  his 
office,  such  as  William  B.  Hornblower,  Lloyd  W.  Bowers  and 
Paul  D.  Cravath."  Sherburne  Blake  Eaton,  a  member  of  the 
firm,  became  chief  executive  officer  of  the  Edison  Electric 
Light  Company  in  1881,  and  its  president  and  general  counsel 
in  1884.  Carter's  great  obsessing  hobby  was  in  encouraging 

739 


74O  HISTORY   OF   THE   SUPREME   COURT 

a  peculiar  and  ludicrous  form  of  caste  snobbery;  he  was  a 
member  of  the  "  Settlers  and  Defenders  of  America,"  the 
"  Founders  and  Patriots  of  America,"  the  "  Society  of  May- 
flower Descendants," -and  the  "  Sons  of  the  Revolution."  As 
for  Hornblower  he  was,  as  early  as  1880,  counsel  for  the  New 
York  Life  Insurance  Company ;  he  became  one  of  the  trustees 
of  that  company,  and  head  of  the  committee  which  approved 
the  so-called  "  yellow-dog "  fund  of  the  New  York  Life  In- 
surance Company,  which  fund,  ostensibly  disbursed  as  "  legal 
expenses,"  was  used,  in  reality,  to  purchase  favorable  legisla- 
tion and  to  defeat  hostile  bills.  Hornblower  was  also  counsel 
for  the  New  York  Central  Railroad  Company,  the  Rome,  Wa- 
tertown  and  Ogdensburg  Railroad  Company,  the  New  York 
Security  and  Trust  Company,  and  many  other  corporations. 

This  was  the  same  Hornblower  who  passed  as  a  notable 
"  reformer"  in  politics,  and  who  (as  we  have  already  related) 
had  been  nominated  by  President  Cleveland  an  Associate  Justice 
of  the  Supreme  Court  of  the  United  States,  which  nomination 
had  been  rejected  by  the  Senate,  in  1894,  for  personal-political 
reasons. 

Such  was  the  atmosphere  of  the  office  in  which  Hughes  was 
a  law  clerk,  and  it  may  be  added  that  Cravath  was  a  fellow 
clerk  at  the  same  time. 

Hughes'  career  now  expanded.  He  was  a  precise,  method- 
ically-minded man,  extremely  careful  of  the  proprieties,  never 
disposed  to  break  conventions,  studying  the  law  and  the  law 
system  as  he  found  them,  sticking  to  the  letter  and  dismissing 
the  spirit,  for  he  saw  that  it  was  the  letter  that  was  applied.  He 
perceived,  too,  that  the  most  successful  lawyers  were  those 
pleading  for  corporations ;  they  waxed  fat  and  great,  and  were 
high  personages  in  the  community.  On  the  other  hand,  he 
could  not  help  seeing  that  those  who  made  a  practice  of  de- 
fending the  poor  and  helpless,  the  victims  of  the  industrial 
system,  not  only  invited  poverty,  but  suffered  a  distinct  stigma 
in  the  eyes  of  the  influential  and  powerful. 


UNDER    CHIEF   JUSTICE    WHITE  74! 

Hughes  as  an  Attorney. 

Hughes  had  married  Carter's  daughter,  and  in  1888  the  law 
firm  of  Carter,  Hughes  and  Cravath  was  formed.  Need  it  be 
explained  who  Paul  D.  Cravath  was,  the  skillful  and  renowned 
Cravath?  Later  he  became,  and  for  nearly  a  quarter  of  a 
century  remained,  Thomas  F.  Ryan's  most  confidential  legal 
aide,  not  as  adroit  as  Elihu  Root,  but  more  constant,  standing 
to  Ryan  as  his  shadow.  Of  Ryan's  career  we  have  already 
given  sufficient  glimpses ;  how  from  being  a  penniless  young 
man,  he  became  one  of  the  most  conspicuous  multimillionaires 
of  the  country,  owning  or  controlling  street  car  systems,  gas 
plants,  railroads,  trusts  and  other  properties,  and  we  shall  see 
how  he  acquired  one  of  the  great  life  insurance  companies. 
We  cannot  enter  here  into  the  immense  mass  of  testimony  be- 
fore various  legislative  committees  revealing  the  long  trail  of 
corruption  and  criminal  transactions  of  corporations  controlled 
by  him.1  Whenever  a  franchise  for  Ryan's  benefit  was  to  be 
slid  through  Legislature  or  Board  of  Aldermen,  there  Cravath 
was  to  be  found  with  his  particular  arguments  to  persuade 
legislators  that  the  grant  should  be  made. 

When  Hughes  was  a  candidate  for  Governor  of  New  York, 
in  1906,  he  was  quoted  as  denying  that  he  had  ever  been  a  cor- 
poration lawyer  except  in  the  service  of  the  State.  Did  the 
facts  coincide  with  this  statement?  Le£  us  see. 

1  Some  of  these  facts  have  been  described  in  previous  chapters;  others 
will  be  referred  to  later  in  this  chapter.  One  of  Ryan's  transactions 
that  may  be  mentioned  here  was  a  loan  of  $2,000,000  made  by  the  State 
Trust  Company  to  Ryan's  office  boy,  D.  F.  Shea ;  such  a  loan  was  for- 
bidden by  the  laws  of  the  State  of  New  York,  and  in  consequence  was 
a  criminal  transaction. 

On  another  occasion  when  proof  had  been  presented  to  the  banker 
Jacob  H.  SchifT  that  he  had  been  grossly  deceived,  he  compelled  Ryan  to 
relieve  his  (Schiff's)  firm,  Kuhn,  Loeb  and  Company  of  its  holdings  of 
Metropolitan  Securities  Company  stock,  amounting  to  about  $6,000,000. 
"If  Mr.  Ryan,"  says  Col.  Amory,  "had  not  been  a  very  rich  man,  in- 
deed, his  embarrassment  in  satisfying  Mr.  Schiff's  peremptory  demands 
would  have  been  extreme."' — "  Truth  About  Metropolitan,"  p.  45. 


742  HISTORY   OF   THE    SUPREME   COURT 

Effort  to  Put  Deadly  Wires  Under  Ground. 

By  the  year  1875  New  York  City  and  other  cities  were  filled 
with  a  network  of  deadly  telegraph,  electric-light  and  other 
wires,  strung  over  the  pavements  on  wooden  poles.  The  in- 
troduction of  heavy  electric-light  cables  on  poles  brought  a  new 
element  of  danger  to  human  life.  A  constant  menace,  these 
wires,  as  the  courts  later  on  stated,  were  improperly  insulated. 
Their  falling  to  the  ground  killed  people  constantly.  In  fight- 
ing fires,  New  York  City's  firemen  were  also  often  killed,  and 
were  prevented  by  the  wires  from  overcoming  fires  as  success- 
fully as  if  the  wires  had  been  underground. 

In  the  year  1875  tne  New  York  Legislature  had  already 
passed  an  act  ordering  that  the  wires  should  be  placed  under- 
ground. The  electric-light  and  other  companies  affected  made 
resistance  to  this  act,  and  had  it  declared  unconstitutional. 
Year  after  year  they  lobbied  in  the  State  Legislature  to  prevent 
the  passage  of  other  acts. 

But  deadly  accidents  kept  increasing,  and  the  public  demand 
became  stronger  that  the  barbarous  system  of  stringing  wires 
overhead  be  abolished.  The  companies  refused  to  make  the 
change  on  the  ground  that  it  would  entail  much  expense. 

At  this  point  high  city  officials  suddenly  began  to  support  the 
public  demand  that  the  "  poles  must  go."  What  was  the  mo- 
tive of  these  Tammany  officials?  Was  it  one  of  public  spirit? 
Scarcely.  The  sequel,  years  after,  revealed  that  a  band  of 
shrewd  politico-capitalists  had  seen  how  they  could  take  ad- 
vantage of  this  reform  movement,  and  under  cover  of  it  get  a 
comprehensive  monopoly  for  themselves  of  the  right  of  laying 
and  operating  underground  conduits  for  the  wires. 

The  New  York  Legislature,  in  1884,  enacted  a  law  compell- 
ing companies  in  all  cities  of  more  than  500,000  population  to 
put  their  wires  underground  before  November  i,  1885.  If 
they  failed  to  do  this  the  city  government  was  empowered  to 
tear  the  wires  down  and  put  them  underground. 


UNDER    CHIEF   JUSTICE   WHITE  743 

The  companies  raised  the  objection  that  the  time  allowed 
them  was  too  brief.  Moreover,  they  did  not  want  to  put  the 
wires  underground  in  any  more  cities  than  could  be  avoided. 
Lobbying  at  Albany  produced  an  amendatory  act  making  the 
law  apply  to  cities  exceeding  a  million  population  only.  This, 
of  course,  meant  that  the  operation  of  the  act  was  restricted 
to  New  York  City;  no  other  city  had  a  population  of  more 
than  a  million.  The  act  of  1885  also  created  a  Board  of  Elec- 
trical Control.  A  supplementary  act  was  passed  in  1886. 
Still  another  law  was  enacted  in  1887  giving  New  York  City 
authority  to  remove  the  poles  and  wires  ninety  days  after  no- 
tice should  be  served. 

These  laws  were  contested  by  the  companies.  Finally,  on 
May  12,  1889,  Mayor  Grant  ordered  the  electric-light  wires 
to  be  torn  down.  His  ground  was  that  they  were  imperfectly 
insulated  and  dangerous  to  human  life. 

Hughes  Pleads  for  Electric  Light  Companies. 

On  November  n,  1889,  James  C.  Carter,  Joseph  H.  Choate 
and  Charles  E.  Hughes,  representing  the  United  States  Il- 
luminating Company  and  the  Mount  Morris  Electric  Light 
Company,  went  to  court.  Pleading  that  the  act  of  1887  was 
"  an  invasion  of  the  rights  of  property,"  they  secured  an  in- 
junction against  the  city. 

The  city  appealed  for  the  dissolving  of  the  injunction.  This 
appeal  was  argued  in  the  General  Term  of  the  Supreme  Court, 
in  New  York  City,  in  December,  1889,  before  Judges  Van 
Brunt,  Barrett  and  Brady.  The  companies  were  again  repre- 
sented by  Carter,  Choate  and  Hughes.2 

The  three-  judges  concurred  in  deciding  in  favor  of  New 
York  City.  Their  decision  was  of  rather  a  caustic  order, 
scoring  the  contentions  of  counsel  for  the  companies. 
".  .  .  When,"  said  this  decision,  "  it  is  apparent,  as  in  the 

•  See  Supreme  Court  Reports,  N.  Y.,  Vol.  62 :  224. 


744  HISTORY   OF   THE   SUPREME  COURT 

case  at  bar,  the  condition  of  the  wires  is  such  that  they  are 
dangerous  to  human  life,  and  that  any  passer-by,  without  negli- 
gence on  his  part,  is  liable  to  be  struck  dead  in  the  street,  can 
it  be  said  for  a  moment  that  the  public  authorities  have  no 
power  to  abate  this  nuisance  and  protect  the  lives  of  its  citi- 
zens? Indeed  it  is  one  of  their  highest  duties,  and  if  they 
allowed  such  a  condition  of  affairs  to  continue,  might  make 
the  city  liable  for  the  damages  sustained  by  reason  of  their 
negligence  in  not  removing  the  common  nuisance.  .  .  ." 

Counsel  for  the  companies,  the  court  said,  had  contended 
that  the  Board  of  Electrical  Control  had  refused  to  allow  re- 
pairs to  be  made.  The  decision  disposed  of  this  plea.  The 
court  said  that  it  was  established  beyond  question  that  the 
wires  had  become  excessively  dangerous.  "  Attention  was 
called  to  this  condition  of  affairs  by  the  happening  of  acci- 
dents by  which  human  life  was  sacrificed.  .  .  ."  This,  the 
court  stated,  was  a  "  shameful  condition  of  affairs." 

The  companies,  the  court  went  on,  had  not  made  "  the  slight- 
est effort  to  compel  the  Board  of  Electrical  Control,  if  they 
unjustly  refused,  to  grant  them  permits  to  repair.  .  .  . 

"If  these  electrical  companies  had  been  actuated  by  the 
slightest  desire  to  put  their  apparatus  in  a  condition  such  as 
would  not  endanger  human  life,  they  could  easily  have  found 
a  way  to  remove  the  obstruction  which  they  claim  was  placed 
in  their  path  by  the  Board  of  Electrical  Control.  It  would 
seem  that  they  were  only  too  willing  to  shelter  themselves  be- 
hind the  assumed  unreasonableness  of  some  of  the  regulations 
of  the  board,  and  to  allow  their  apparatus  to  get  into  such  a 
condition  that  it  was  dangerous  to  human  life  and  become  a 
public  nuisance."  The  companies,  the  court  said,  were  "  guilty 
of  the  wilful  violation  of  a  manifest  duty  in  allowing  the  wires 
to  become  dangerous.  They  are  without  excuse,  and  when 
they  claim  that  the  destruction  of  these  instruments  of  death 
...  is  an  invasion  of  the  rights  of  property,  such  claim 
§eems  to  proceed  upon  the  assumption  that  nothing  has  a  right 


UNDER    CHIEF   JUSTICE    WHITE  745 

to  exist  except  themselves."  3     The  court  upheld  the  constitu- 
tionality of  the  law. 

Scramble  for  Underground  Franchises. 

While  Hughes  was  thus  acting  for  the  electric-light  com- 
panies, his  partner,  Cravath,  was  busy  in  other  directions. 

Realizing  the  great  value  of  a  monopoly  of  underground  con- 
duits, the  Western  Union  Telegraph  Company  (then  con- 
trolled by  Jay  Gould  and  Russell  Sage)  and  the  Metropolitan 
Telephone  Company  4  (now  the  New  York  Telephone  Com- 
pany) had  organized  the  Consolidated  Telegraph  and  Electri- 
cal Subway  Company,  which  secured  a  franchise  to  construct 
and  operate  conduits  throughout  the  entire  city.  All  other 
companies  using  wires  were  now  confronted  with  the  necessity 
of  using  those  conduits  and  of  being  forced  to  pay  a  certain 
schedule  of  rentals. 

The  electric-light  companies  saw  the  situation  in  which  they 
now  were.  On  the  one  hand  the  city  was  moving  against  them 
to  force  their  wires  underground ;  on  the  other,  the  only  con- 
duit franchise  was  owned  by  the  Consolidated  Telegraph  and 
Electrical  Company.  While  Hughes  was  one  of  the  attorneys 
resisting  the  city's  move,  partner  Cravath  was  persuading  the 
Board  of  Electrical  Control  to  give  the  electric-light  companies 
franchises  for  underground  conduits. 

There  was  a  lively  scramble  for  franchises.  On  October  14, 
1889,  Wheeler  H.  Peckham  appeared  as  counsel  for  the  Stand- 
ard Electrical  Subway  Company.  This  was,  it  is  hardly  neces- 
sary to  say,  the  same  Peckham  whom  Cleveland,  in  1894,  nom- 
inated as  Associate  Justice  of  the  Supreme  Court  of  the  United 
States,  and  whose  nomination  was  rejected  by  the  Senate  be- 
cause of  Senator  Hill's  personal  opposition.  Peckham  pleaded 
with  the  Board  of  Electrical  Control  that  it  give  a  conduit 

3  Supreme  Court  Reports,  N.  Y.,  Vol.  62,  pp.  222-245. 
•*  Controlled  by  the  Bell  Telephone  Company, 


746  HISTORY   OF   THE   SUPREME   COURT 

franchise  to  the  Standard  Electrical  Subway  Company.5  Elihu 
Root  came  forward,  on  February  17,  1890,  to  plead  for  the 
gift  of  a  conduit  franchise  to  the  Manhattan  Electric  Light 
Company  and  the  Harlem  Lighting  Company.  Root  opposed 
Peckham's  company,  and  argued  against  giving  it  a  franchise.0 

On  the  same  day  on  which  Root  appeared,  Joseph  H.  Choate, 
Paul  D.  Cravath 7  and  Caleb  H.  Jackson,  representing  the 
United  States  Illuminating  Company  and  the  Safety  Electric 
Light  and  Power  Company,  argued  before  the  Board  of  Elec- 
trical Control  in  favor  of  conduit  franchises  for  those  com- 
panies, and  opposed  the  Consolidated  Telegraph  and  Electrical 
Subway  Company.8 

The  upshot  of  this  scramble  was  that  all  these  companies 
-succeeded  in  getting  franchises  in  this  way :  A  new  company, 
called  the  Empire  City  Subway  Company,  was  organized,  and 
presented  in  1891  with  a  comprehensive  franchise  to  lay  and 
operate  underground  conduits.  The  conduits  of  the  one  com- 
pany were,  it  was  stipulated,  to  be  used  for  high-tension,  and 
those  of  the  other  for  low-tension,  wires. 

5  See  "  Minutes  of  the  Board  of  Electrical  Control,"  Vol.  I,  July,  1887, 
to  Dec.,  1890,  p.  824. 
e  Ibid.,  889. 

7  Considering  that  Choate  and  Cravath  represented  the  same  clients 
in  the  above  case,  it  is  worth  noting  here  that  it  was  Choate  who,  twenty 
years  later,  in  open  oourt,  severely  denounced  Cravath.     This  incident 
occurred  on  January  25,   1910,  in  the  United  States  Circuit  Court  at 
New  York,  before  Judge  Ray.     The  occasion  was  a  suit  over  the  finan- 
ciering of  the  traction  lines  in  New  York  City.     Choate  excoriated  the 
magnates   responsible   for   the   long-continued    looting   of   the   traction 
lines  and  the  ensuing  corruption.     As  the  attorney   for  these  looters 
Cravath  was  not  spared  in  the  scathing  denunciation. 

8  "  Minutes  of  the  Board  of  Electrical  Control,"  Vol.  I,  etc.,  824,  826, 
917,  and  1007.     This  company  fixed  a  certain  rental  for  the  use  of  its 
ducts.     Refusing  to  pay  it,  the  Brush  Electric  Illuminating  Company 
was  threatened  with  eviction.     Representing  the  Brush  Company,  Crav- 
ath, in  June,  1891,  applied  for  a  preliminary  injunction  against  the  Con- 
solidated and  Electrical  Subway  Company.     The  application  was  denied, 
and  so  was  the  appeal  following.    James  C.  Carter,  Frederick  R.  Cou- 
dert  and  Edward  Lauterbach  appeared  as  the  attorneys  for  the  Consoli- 
dated and  Electrical  Subway  Company. —  Supreme  Court  Reports,  N.  Y., 
Vol.  67:  446. 


UNDER    CHIEF   JUSTICE    WHITE  747 

It  may  be  said  parenthetically  at  this  point  that  Hughes  and 
Cravath  sundered  partnership  in  about  the  year  1890. 

i 
Monopoly  Established. 

Having  fought  the  city  and  then  one  another,  the  companies 
now  combined  in  a  huge  monopoly.  From  that  day  to  this  not 
a  single  telegraph,  telephone,  electric-light  or  other  company 
disapproved  of  by  the  combination,  has  been  able  to  get  wires  in 
the  conduits.  It  was  originally  provided  that  all  companies 
should  have  access,  but  this  condition  has  been  evaded  by  vari- 
ous pretexts. 

With  this  monopoly  of  underground  conduits  secured,  the 
various  companies  raised  their  rates  to  an  extortionate  scale.. 
The  Metropolitan  Telephone  Company  increased  its  rates  for 
unlimited  service  from  $125  and  $150  a  year  to  $240  annually, 
and  in  some  years  its  profits  rose  to  145  per  cent,  on  the  actual 
cash  capital,  excluding  from  computation  the  capital  added  by 
dividends  not  distributed.9  The  conduit  monopoly  has  made 
enormous  profits.  Under  the  terms  of  the  franchise  all  profits 
exceeding  ten  per  cent,  were  to  go  to  the  city,  but  by  a  con- 
tinuous process  of  juggling  with  the  books,  and  the  frequent 
issue  of  watered  stock,  the  nominal  profits  (as  reported  to  the 
city)  have  never  equaled  ten  per  cent. 

All  the  electric-light  companies  were  later  merged  into  one 
monopoly,  which  in  turn  was  controlled  by  the  Consolidated 
Gas  Company,  which  was  controlled  by  the  Standard  Oil  Com- 
pany.10 In  view  of  the  decision  of  the  Supreme  Court' of  the 

9  "  Argument  of  Simon  Sterne  before  the  N.  Y.  Senate  Committee  on 
Cities,  Feb.  5  and  19,  1895,"  p.  6. 

10  Moody's  "The  Truth  About  The  Trusts":  415.     Also   see   testi- 
mony in  the  recent  hearing  before  the  Public  Service  Commission,  First 
District,   New   York,   "  Public   Service  Commission :    Electric   Lighting 
Investigation,"  Vol.  IV:  1510,  etc.,  etc.     This  testimony  showed  that  the 
United  States  Illuminating  Company,  the  Brush  Electric  Illuminating 
Company,  the  Edison  and  other  companies  were  merged,  in  1890,  in  the 
United  Light  and  Power  Company  which  in  turn  was  controlled  by  the 
Consolidated  Gas  Company. 


HISTORY   OF   THE    SUPREME   COURT 

United  States  in  the  eighty-cent  case  (related  in  a  previous 
chapter)  which  Justice  Peckham,  a  brother  of  Wheeler  H. 
Peckham,  wrote,  and  considering  the  facts  here  narrated,  it  is 
well  to  repeat  the  names  of  some  of  the  great  capitalist  mag- 
nates controlling  the  Consolidated  Gas  Company.  Among  the 
directors  were  William  Rockefeller,  George  F.  Baker,  James 
Stillman,  William  C.  Whitney,  Thomas  F.  Ryan,  Anthony  N. 
Brady  and  sundry  others. 

Thus  we  see  Hughes  starting  out  as  a  young  lawyer  in  the 
lucrative  field  of  representing  corporations.  His  clients, 
whether  corporate  or  private,  were  all  rich ;  poor  men's  cases 
do  not  seem  to  have  been  any  part  of  Hughes'  practice.  That 
Hughes  himself  was  in  money  matters  personally  and  scrupu- 
lously honest  was  a  fact.  No  doubt  he  gave  conscientious,  zeal- 
ous service  for  the  fees  that  he  received. 

But  the  question  of  personal  honesty  embraces  so  many  as- 
pects, and  demands  so  deep  an  analysis  that  it  cannot  con- 
clusively be  said  that  a  man  was  honest  because  he  resorted 
to  no  illegal  methods.  There  is  an  intellectual  and  class  dis- 
honesty which  in  its  results  far  exceeds  pecuniary  dishonesty. 
The  question  might  here  be  profitably  entered  into  since  it  is 
the  fact  that  an  individual's  views  and  conduct  are  largely  de- 
termined by  his  interests,  training,  environment  and  long-con- 
tinued associations.  The  problem  is  to  a  great  extent  a  social, 
not  an  individual,  one ;  and  when  we  consider  why  this  or  that 
man  was  selected  for  the  Supreme  Court  bench  it  is  necessary 
to  know  what  his  antecedent  associations,  influences,  and  inter- 
ests were. 

New  York,  Westchester  and  Boston  Project. 

The  second  illustration  of  Hughes'  activities  as  a  lawyer  was 
his  efficient  work  in  getting  a  franchise  for  the  New  York, 
Westchester  and  Boston  Railway. 

For  its  entrance  into  New  York  City,  the  New  York,  New 
Haven  and  Hartford  Railroad  had  long  had  to  use  the  New 


UNDER   CHIEF  JUSTICE   WHITE  749 

York  Central's  tracks  from  Woodlawn  to  the  Grand  Central 
depot.11  This  privilege  cost  it  a  certain  tariff  of  seven  cents  on 
every  passenger,  which  tariff  was  recently  increased  to  twelve 
cents.  The  New  York,  New  Haven  and  Hartford  Railroad  was 
and  is  controlled  by  J.  Pierpont  Morgan ;  it  now  sought  its  own 
entrance  into  New  York  City.  How  was  this  to  be  obtained  ? 

It  happened  that  in  the  year  1872  a  company  called  the  New 
York,  Westchester  and  Boston  Railroad  Company  had  organ- 
ized by  filing  articles  of  incorporation  at  Albany.  In  reality  it 
was  an  abortive  corporation ;  it  had  never  completed  the  neces- 
sary legal  formality  of  filing  an  affidavit  as  prescribed  by  Sec- 
tion 2,  Railroad  Law  of  i85o.12 

The  company,  or  what  called  itself  the  company,  became 
insolvent  in  1876,  and  a  receiver  was  appointed  on  March  25 
of  that  year.  On  March  22,  1881,  the  Supreme  Court  of  New 
York  directed  the  receiver  to  sell  all  its  rights,  title,  interest, 
real  estate,  etc.  These  were  sold  to  William  F.  Pelt  for  $5,500. 

According  to  good  legal  authority  this  sale  operated  to  de- 
prive the  company  of  any  located  route,  except  such  as  the  Leg- 
islature might  subsequently  grant.  But  the  Legislature  did  not 
act. 

For  years  the  paper  franchise  was  hawked  about  for  sale; 
nobody  seemed  to  want  it. 

Hughes  Comes  Forward  for  the  Project. 

r  . 

In,  however,  either  the  year  1900  or  1901  some  powerful  in- 
terest suddenly  took  up  the  phantom,  and  on  the  strength  of 
it  tried  to  get  a  definite  franchise  from  the  Board  of  Alder- 
men. This  body  was  at  that  time  vested  with  the  power  of 
franchise  granting.  It  was  significant  that  the  firm  of  Carter, 
Hughes,  Rounds  and  Schurman  (so  the  firm  was  now  styled) 

11  The  New  York  Central  controls  the  old  New  York  and  Harlem 
River  Railroad  which  owns  the  franchise  to  operate  on  Park  Avenue. 

12  See,  "Minutes  of  the  [N.  Y.]   Board  of  Estimate  and  Apportion- 
ment, 1004,"  Vol.  I:  471. 


75O  HISTORY   OF   THE    SUPREME   COURT 

appeared  as  the  attorneys  advocating  the  granting  of  the  fran- 
chise. They  seldom  came  forward  except  to  represent  some 
big  interest.13  Hughes  was  the  member  of  the  firm  who  was 
the  active  attorney  in  arguing  for  the  passage  of  the  fran- 
chise.14 

Hughes  solemnly  denied  that  any  large  interest  was  behind 
the  project;  he  asserted  that  the  company  was  one  absolutely 
independent  of  connection  with  any  other  corporation.  The 
Board  of  Aldermen  were  skeptical. 

At  the  same  time  another  company  called  the  New  York  and 
Port  Chester  Railroad  Company  projected  itself  upon  the  scene, 
applied  for  a  franchise,  and  began  opposing  the  New  York, 
Westchester  and  Boston  Company. 

Report  had  it  that  both  companies  were  owned  by  the  New 
York,  New  Haven  and  Hartford  Railroad,  and  interesting 
rumors  declared  that  the  show  of  opposition  was  only  a  trick 
to  blind  the  people ;  that  the  object  was  to  get  a  franchise  for 
either  company  or  both  companies. 

Later  developments  proved,  as  we  shall  see,  that  both  com- 
panies were,  in  fact,  owned  by  the  New  York,  New  Haven  and 
Hartford  Railroad,  controlled  by  J.  Pierpont  Morgan  and  the 
Standard  Oil  group. 

The  Aldermanic  Hold-Up. 

For  three  years  the  Board  of  Aldermen  refused  to  grant  the 
franchises.  Nobody  imputed  any  lofty  motive  to  the  Honor- 
able Board.  Meanwhile,  what  Lemuel  Ely  Quigg  on  another 
occasion  called  "  accelerators  of  public  opinion  "  carried  on 

13  From  the  New  York  Times,  issue  of  January  19,  1008:     "A  noted 
corporation  lawyer,  speaking  of  Mr.  Hughes,  said  that  he  was  not  a 
money  maker  and  was  one  of  the   few  lawyers   who  consulted   their 
clients  as  to  the  size  of  his  fees."     The  article  further  stated  of  Hughes 
that  when  he  became  a  candidate  for  Governor  of  New  York  (in  1906) 
"  it  is  doubtful  whether  he  was  worth  more  than  $100,000." 

14  "  Minutes  of  the  [N.  Y.]   Board  of  Estimate  and  Apportionment, 
1904,"  Vol.  1 :  1089,  1094,  etc. 


UNDER    CHIEF   JUSTICE    WHITE  751 

their  deft  work.  "  Taxpayers'  organizations  "  were  formed  to 
support  or  oppose  one  side  or  the  other,  and  the  Aldermen 
were  bombarded  with  a  series  of  approving  or  denunciatory 
resolutions.15 

A  significant  episode  now  turned  up,  revealing  that  legis- 
lative bodies  were  merely  registering  committees  for  the  great 
capitalists. 

The  Board  of  Aldermen  had  withheld  granting  both  the 
Westchester  franchise  and  the  franchise  for  the  Pennsylvania 
Railroad  to  enter  New  York  City  via  the  Hudson  River  tun- 
nel. Somehow  and  from  somewhere  the  announcement  now 
came  that  unless  the  Board  of  Aldermen  acted,  a  law  would  be 
passed  by  the  Legislature  stripping  it  of  all  power  of  granting 
franchises.  The  threat  was  soon  carried  into  execution.  The 
Legislature  passed  an  act  vesting  franchise-granting  power  in 
the  Board  of  Estimate  and  Apportionment.  This  body  was 
favorably  inclined. 

Board  of  Estimate  Gives  Long-Sought  Franchise. 

The  first  point  that  this  Board  decided  to  pass  upon  was  the 
question  whether  or  not  the  New  York,  Westchester  and  Bos- 
ton Railroad  Company  was  or  was  not  a  defunct  corporation. 

On  March  30,  1904,  Corporation  Counsel  Delaney  (elected 
by  Tammany  Hall)  reported  to  the  Board  of  Estimate  and  Ap- 
portionment that  the  Board  had  no  jurisdiction  to  examine  the 
legal  capacity  or  incapacity  of  the  company. 

In  the  minutes  of  the  Board  of  Estimate  and  Apportionment 
Charles  E.  Hughes  was  described  as  the  attorney  of  the  pro- 
jected railroad.  These  minutes  give  a  long  letter  written  and 
signed  by  Hughes  from  the  office  of  Carter,  Hughes,  Rounds 
and  Schurman,  96  Broadway  and  6  Wall  Street,  to  Corporation 
Counsel  Delaney,  proposing  certain  changes  in  the  wording  of 

15  These  were  duly  published  in  the  "  Minutes  of  the  Board  of  Esti- 
mate and  Apportionment,  1904  " :  471,  etc. 


752  HISTORY   OF   THE   SUPREME   COURT 

the  franchise  contract.10  Delaney  wrote  in  part  this  reply  to 
the  Board  regarding  Hughes'  proposals :  "  Some  of  these  I 
will  not  here  discuss  because  I  do  not  deem  it  expedient  for  the 
City's  interests  that  they  should  be  adopted,  but  there  are  sev- 
eral which  should  receive  consideration."  17 

The  New  York,  Westchester  and  Boston  Railway  Company 
finally  received  its  long-sought  franchise  on  June  24,  1904.  Al- 
though represented  by  Hughes  as  an  absolutely  independent 
company,  which  it  may  have  been  in  name,  it  really  was  nothing 
more  or  less  than  an  adjunct  of  the  New  York,  New  Haven 
and  Hartford  Railroad  Company.  Its  franchise  allowed  it  to 
operate  more  than  sixteen  miles  of  four-track  line  within  New 
York  City's  limits,  the  main  line  crossing  one  hundred  and 
twenty  streets ;  and  its  branch  line  seventy-four  streets.  It  se- 
cured practically  all  the  available  routes  for  entrance  and  exit 
to  and  from  New  York  City  by  way  of  the  Bronx.  It  is  the 
only  purely  privately-owned  rapid  transit  line  in  New  York 
City.  Its  terminal,  it  is  true,  is  on  the  north  side  of  the  Har- 
lem River,  but  it  will  probably  be  able  to  convey  its  passengers 
downtown  by  a  new  subway.  Moreover,  by  means  of  the 
Pennsylvania  Railroad  Company's  New  York  Connecting  Rail- 
road, which  will  traverse  Randall's  and  Ward's  Island  to  and 
from  Long  Island,  its  trains  will  be  able  to  run  into  the  Penn- 
sylvania Railroad's  station  on  Seventh  Avenue  and  thence  un- 
der the  Hudson  River  south  and  west,  and  the  Pennsylvania 
Railroad  can  run  its  trains  over  the  New  York,  New  Haven  and 
Hartford  Railroad's  tracks  into  New  England. 

The  immense  value  of  the  franchise  can,  therefore,  be  seen 
at  a  glance.     Its  present  value  both  as  a  railroad  entrance  and 
outlet  and  as  a  rapid-transit  line  is  recognized  as  great  enough, 
and  its  potential  value  —  considering  growth  of  population  — 
is  unquestionably  even  greater. 

16  "Minutes  of  the   [N.  Y.]   Board  of  Estimate  and  Apportionment, 
1904,"  Vol.  I,:  1089. 

17  Ibid.,  1094. 


UNDER    CHIEF   JUSTICE    WHITE  753 

J.  P.  Morgan  and  Associates  in  Control. 

That  the  New  York,  Westchester  and  Boston  Railroad  and 
the  New  York  and  Port  Chester  Railroad  were  both  owned 
by  Morgan's  New  York,  New  Haven  and  Hartford  Railroad 
was  shown  by  the  formal  incorporation  of  the  Millbrook  Com- 
pany on  November  5,  1906.  The  Millbrook  Company  was  a 
holding  company  for  the  New  York,  New  Haven  and  Hartford 
Railroad.  It  held  the  entire  stock  of  the  Port  Chester  Rail- 
road, which  in  turn  held  the  stock  of  the  New  York,  Westches- 
ter and  Boston  Railroad. 

The  final  proceedings  occurred  when  Hughes  was  Governor. 
An  act  was  passed  by  the  New  York  Legislature  and  signed 
by  Governor  Hughes  on  May  29,  1909,  18  authorizing  the  New 
York,  Westchester  and  Boston  Railroad  and  the  New  York 
and  Port  Chester  Railroad  to  consolidate.  The  consolidation 
agreement  provided  for  $45,000,000  capital  in  all,  with  possi- 
bilities of  increase.  There  were  $5,000,000  of  stock,  and  $40,- 
000,000  of  mortgages,  on  which  $15,100,000  of  bonds  had  been 
issued  by  December  23,  1909.  The  remainder  of  the  bonds  to 
be  issued  under  the  mortgages  were  subject  to  the  consent  of 
the  Public  Service  Commission,  Second  District.  But  this  capi- 
talization gives  no  adequate  idea  of  the  intrinsic  value  of  the 
franchises,  the  value  of  which  is  estimated  at  much  more  than 
a  hundred  million  dollars. 

The  consolidation  agreement  also  showed  that  the  directors  of 
the  new  company  were  J.  Pierpont  Morgan,  Lewis  Cass  Led- 
yard,  William  Rockefeller,  Robert  W.  Taft,  Charles  S.  Mellen 
(president  of  the  New  York,  New  Haven  and  Hartford  Rail- 
road) and  other  capitalists.  Further,  the  agreement  stated  that 
the  New  York,  New  Haven  and  Hartford  Railroad  Company 
owned  91,581  of  the  total  issue  of  91,590  shares  of  the  New 
York  and  Port  Chester  Railroad,10  and  105,384  shares  of  the 

18  Chap.  579,  Laws  of  1909. 

10  "  Consolidation  Agreement,"  p.  15. 


754  HISTORY   OF   THE    SUPREME   COURT 

entire  issue  of  105,397  shares  of  the  New  York,  Westchester 
and  Boston  Railroad.20 


Hughes  Becomes  Prominent. 

Up  to  this  time  Hughes  was  comparatively  unknown  to  the 
general  public.  He  first  attained  popular  notice  in  his  capacity 
as  counsel  for  the  (Stevens)  Legislative  Committee  of  New 
York  which  was  appointed  to  investigate  the  price  of  gas. 
The  result  of  this  committee's  findings  was  the  passage  of  a 
law  providing  that  the  charge  for  gas  in  New  York  City  should 
be  not  more  than  eighty  cents  per  thousand  cubic  feet.  How 
this  law  was  long  contested,  and  how  the  Supreme  Court  of  the 
United  States,  while  upholding  its  constitutionality,  adroitly 
used  the  case  to  intrench  property  interests  to  a  remarkable 
degree  —  these  facts  have  been  related  in  clear  detail  in  a 
previous  chapter. 

When,  in  1905,  a  contest  between  competitive  magnates  in 
the  Equitable  Life  Assurance  Society  led  to  the  disclosure 
of  a  great  scandal,  a  legislative  committee  was  appointed  to 
investigate  the  methods  of  the  large  life  insurance  companies. 
Hughes  was  chosen  as  the  committee's  counsel.  There  was  a 
belief  that  this  investigation  was  inspired  or  instigated  by  cer- 
tain powerful  magnates  or  groups  of  magnates  with  the  ulterior 
purpose  of  ousting  certain  other  magnates  from  control  of  the 
vast  assets  of  the  insurance  companies.  If  this  were  true  — 
and7 indications  strongly  pointed  that  way  —  there  is  no  evi- 
dence'for  the  suspicion  that  Hughes  was  in  any  way  a  conscious 
party  to  the  proceeding,  even,  though  newspapers  opposed  to 
him  politically  later  pointed  out  insinuatingly  that  at  one  stage 
of  the  contest  for  the  control  of  the  Equitable  Life  Assurance 
Society  he  had  been  counsel  to  James  W.  Alexander,  president 
of  that  corporation,  and  that  he  had  been  counsel  for  the  Mer- 
cantile Trust  Company  —  allied  with  the  Equitable  Life  As- 

20  "  Consolidation  Agreement,"  p.  9. 


UNDER    CHIEF    JUSTICE    WHITE  755 

surance   Society  —  in  part  of  the  litigation   involved  by  the 
Shipbuilding  Trust  scandal. 


He  Exposes  Insurance  Iniquities. 

As  counsel  to  the  committee,  Hughes  displayed  uncommon 
skill  and  perseverance  in  unearthing  certain  parts  of  the  vast 
system  of  insurance  corruption  through  which  the  directors, 
brokers,  promoters,  syndicates  of  magnates  and  retainers,  mem- 
bers of  Legislatures,  lobbyists  and  politicians  enriched  them- 
selves at  the  expense  of  the  policy  holders.  Point  by  point 
he  patiently  brought  out  the  involved  and  concealed  circum- 
stances of  the  long-continued  enormities  of  loot  and  corruption. 
Reputations,  long  acclaimed  for  their  respectability,  were 
blasted,  others  ruined,  by  these  revelations.  Of  the  great  array 
of  facts  presented  in  the  committee's  report,  we  have  already 
described  some  in  a  previous  chapter. 

Hughes'  work  called  forth  a  newspaper  demand  that  he  be 
nominated  for  Governor  of  New  York  by  the  Republican  party 
that  he  might  be  able  to  put  into  law  the  insurance  reforms 
that  he  had  advocated.  Meanwhile  an  event  took  place  which 
the  sophisticated  might  well  have  expected  but  which  surprised 
the  innocent. 


The  Odd,  Yet  Inevitable,  Result. 

It  was  soon  observed  that  the  only  real  result  of  the  great 
investigation  was  to  enable  some  magnates  to  oust  others,  and 
to  concentrate  the  power  of  the  dominating  financial  grpups> 
Morgan  tightened  his  hold  on  the  New  York  Life  Insurance 
Company.  The  Harriman-Standard  Oil  Company  interests  ob- 
tained a  completer  control  of  the  Mutual  Life  Insurance  Com- 
pany, and  Hyde,  Harriman's  puppet  in  the  Equitable  Life  As- 
surance Society,  was  put  out,  and  none  other  than  Thomas  F. 
Ryan  stepped  into  full  control  of  the  $470,000,000  assets  of  that 


756  HISTORY  OF  THE   SUPREME   COURT 

company  and  retained  if  until  December,  1909,  when  he  sold 
his  controlling  stock  to  J.  Pierpont  Morgan. 

It  was  currently  reported  that  Cravath  persuaded  Ryan  that 
Hughes  would  be  a  "  safe  man  "  as  Governor,  but  whether  this 
report  was  true  or  not  we  cannot  say.  One  fact  much  com- 
mented upon  was  that  in  its  investigation  the  legislative  com- 
mittee avoided  any  genuine  inquisition  into  the  methods  of  in- 
dustrial insurance  companies.  These  companies  fattened  on 
the  poorest  and  most 'industrious  part  of  the  population,  ex- 
tracting hundreds  of  millions  of  dollars  in  profits  from  the 
working  class.  However,  Hughes'  record  as  exposer  of  insur- 
ance corruption  was  widely  praised;  he  was  acclaimed  as  a 
typical  example  of  the  "  good  man  in  politics." 

Evidently  the  big  financial  magnates  and  capitalists  had  a 
deep  appreciation  of  Hughes'  devout  qualities,  for  they  came 
forward  in  large  numbers  to  contribute  to  the  campaign  fund 
of  the  Republican  gubernatorial  campaign,  when  he  was  a 
candidate  for  Governor,  in  1906.  J.  P.  Morgan  and  Company 
and  Levi  P.  Morton  each  contributed  $20,000.  Andrew  Car- 
negie, John  D.  Rockefeller,  Jr.,  H.  B.  Hollins  and  E.  M. 
Wells  each  contributed  $5,000.  Harvey  Fisk  and  Son,  Chaun- 
cey  M.  Depew,  John  W.  Gates,  J.  and  W.  Seligman  and  Com- 
pany, Kuhn,  Loeb  and  Company,  and  sundry  others  each  gave 
contributions  of  $2,500.  Charles  M.  Schwab,  Edwin  Gould, 
Jacob  Schiff,  William  H.  Moore,  Adolph  Lewisohn  and  many 
other  millionaires  or  multimillionaires  each  contributed  $1,000 
or  $2,000.  The  total  sum  contributed  was  $313,923.  Inas- 
much as  all  of  the  aforesaid  contributors  were  reputed  to  be 
extremely  sagacious,  practical  men,  it  is  quite  clear  that  they 
were  under  no  illusions  as  to  the  measure  of  Mr.  Hughes. 

Hughes  Elected  Governor. 

After  Hughes'  election  as  Governor  of  New  York  in  1906, 
certain  pretentious  laws  of  a  "  reform  "  nature  were  passed. 


UNDER    CHIEF   JUSTICE    WHITE  757 

Some  were  good  in  their  way,  but  it  was  a  negligible  good. 
Laws  were  enacted  to  prevent  the  corrupt  use  of  insurance 
funds,  yet  of  what  real  avail  are  such  laws  as  these  in  a  fabric 
erected  on  corruption  and  sustained  by  it?  The  statute  books 
were  already  encumbered  by  laws  prohibiting  corruption.  They 
were  always  evaded  and  never  enforced.  Moreover,  even  if 
corruption  by  the  insurance  companies  were  stopped,  the  saving 
of  the  millions  formerly  spent  in  corruption  all  the  more  en- 
riched the  magnates  in  control  and  gave  them  larger  funds  to 
manipulate.  The  policy  holders  were  no  better  situated ;  their 
premiums  were  as  high  as  ever,  and  the  conditions  more  or  less 
as  hard  as  before,  although  some  slight  relief  was  given  in 
the  abolition  of  the  "  deferred  dividend  "  plan. 

In  fact,  the  great  magnates  continued  to  use  the  insurance 
money  i:i  their  fraudulent  trust  and  railroad  operations.  Har- 
riman,  by  the  end  of  1907,  had  obtained  from  the  Mutual  Life 
Insurance  Company  not  less  than  $10,000,000  loans  on  stocks 
largely  watered,  and  the  same  company  had  invested  $46,223,- 
500  in  securities  of  corporations  controlled  by  Harriman.  The 
surplus  of  the  Equitable  Life  Assurance  Society  was  put  at 
Ryan's  disposal,  in  violation  of  one  of  the  very  laws  Hughes 
had  advocated  and  caused  to  be  enacted.  By  the  close  of  the 
year  1907  fully  $27,048,517  of  bonds  and  stocks  of  corporations 
controlled  by  Ryan  had  been  sold  to  the  Equitable.  As  for 
the  New  York  Life  Insurance  Company  it  held,  by  the  close 
of  1907,  the  enormous  sum  of  $112,391,000  in  securities  issued 
by  corporations  controlled  by  Morgan.  Inasmuch  as  it  was 
contrary  to  the  new  insurance  law  for  insurance  companies  to 
invest  in  stocks,  the  insurance  companies  explained  that  these 
enormous  holdings  of  stocks  were  "  left  overs  "  of  a  time  be- 
fore the  passage  of  the  law.  So  far  as  the  industrial  insurance 
companies  were  concerned,  Governor  Hughes  did  not  make  a 
single  move  to  remedy  the  evils  bearing  so  heavily  upon  the 
working  class. 

Although  the  insurance  investigation  had  disclosed  that  a 


758  HISTORY   OF    THE    SUPREME   COURT 

large  number  of  officials  or  capitalists  controlling  the  com- 
panies had  been  guilty  of  perjury,  fraud,  mismanagement,  cor- 
ruption and  theft,  it  was  a  subject  of  general  comment  that 
District  Attorney  Jerome,  of  New  York  City,  who  had  been  so 
signally  active  in  sending  petty  offenders  to  prison,  failed  to 
bring  about  conviction  and  imprisonment  of  any- high  insur- 
ance official.  Another  scandal,  too,  was  the  immunity  from 
serious  prosecution  of  Ryan  and  his  associates  of  the  Metro- 
politan Street  Railway  Company  who  were  specifically  charged 
with  having  looted  that  company  of  at  least  $90,000,000  by  du- 
plication of  construction  charges,  manipulation  of  accounts,  and 
other  involved  series  of  thefts  and  frauds.  This  was  the  esti- 
mate made  by  Col.  Amory  in  his  "  Truth  About  Metropolitan," 
published  in  1906. 

When  a  candidate  for  District  Attorney,  in  1901,  Jerome 
had  publicly  and  repeatedly  announced  that  he  would  "  follow 
the  trail  of  corruption  to  the  end,  even  if  it  lead  to  the  offices 
of  the  Metropolitan  Street  Railway  Company."  But  after  his 
election  and  reelection  no  results  came. 


Charges  Against  District  Attorney  Jerome. 

''  On  September  8,  1907,  a  voluminous  petition  was  sent  by 
New  York  business  men  and  others  to  Governor  Hughes  mak- 
ing a  'scathing  criticism  of  District  Attorney  Jerome  for  having 
failed  to  prosecute  the  traction  looters,  and  demanding  that 
the  Attorney-General  of  New  York  State  be  directed  to  prose- 
cute. This  petition  recited  in  detail  the  enormous  frauds  and 
thefts  committed. 

Evidence  was  submitted,  on  December  u,  1907,  to  the  Grand 
Jury  in  General  Sessions  showing  that  Ryan  and  associates  had 
bought  in  1902  from  Anthony  N.  Brady  for  $250,000  the  fran- 
chise" of  a  company  called  the  Wall  and  Cortland  Street  Fer- 
ries Railroad  Company,  a  corporation  having  a  dormant  fran- 
chise for  a  road  never  built.  Then  they  had  sold  this  franchise 


UNDER    CHIEF   JUSTICE    WHITE  759 

to  a  dummy  corporation,  called  the  Metropolitan  Securities 
Company,  for  $965,607.19.  Part  of  this  went  to  the  syndicate's 
brokers;  the  exact  amount  of  loot  divided  among  Ryan, 
Widener,  Dolan  and  the  estates  of  William  C.  Whitney  and 
William  L.  Elkins  was  $692,  292.  82.  -l  The  surviving  members 
of  this  syndicate  practically  confessed  their  guilt  by  making 
restitution  of  this  sum  after  the  facts  had  been  made  public 
and  after  charges  had  been  made  against  Jerome.  On  the 
very  day  that  Ryan  and  associates  had  bought  the  non-existent 
Wall  and  Cortland  Street  Ferries  Railroad  they  had  also  bought, 
for  $1,600,000,  the  People's  Traction  Company  and  the  New 
York,  Westchester  and  Connecticut  Traction  Company,  the 
franchises  of  both  of  which  had  lapsed.  In  this  transaction 
there  was,  it  was  charged,  another  grand  division  of  loot. 


Assortment  of  Thefts  and  Corruptions. 

These  transactions,  however,  were  insignificant  compared  to 
the  theft  of  $16,000,000  from  the  treasury  of  the  Third  Avenue 
Railway,22  and  vaster  plunderings  in  other  directions,  totaling, 
as  we  have  said,  approximately  $90,000,000. 

The  fact  was  brought  out  in  the  investigation  by  the  Public 
Service  Commission  that  all  the  books  of  the  Metropolitan 
Street  Railway  Company  in  which  its  transactions  from  1891 
to  1902  were  recorded  were  sold  to  a  purchaser  who  promised 
to  destroy  them.  Street  car  lines  bought  for  a  few  hundred 
thousand  dollars  were  fraudulently  capitalized  at  ten  or  twenty 
times  that  sum,  and  then  vast  amounts  were  fraudulently 
charged  in  duplication  of  construction  accounts. 

Lemuel  Ely  Quigg  (who  had  been  for  six  years  a  member  of 

21  These  facts  were  testified  by  Brady,  on  October  8,  1907,  in  an,  in- 
quiry conducted  by  Chairman  Wilcox  of  the  Public  Service  Commission. 

22  So    Receiver    Whitridge   of    that   company    stated.     And    see    Col. 
Amory's  remarks,  June  29,  1910,  "Third  Avenue  Company  —  Plan  of 
Reorganization,"  Public  Service  Commission,  Stenographic  Minutes,  p. 
2417. 


760  HISTORY   OF   THE   SUPREME   COURT 

Congress)  admitted  that  in  the  four  years  preceding  1907  he 
had  received  $217,000  from  the  company.  This  was  charged 
-to  a  construction  fund,  part  of  which  was  another  sum  of 
$798,000  corruptly  paid  to  persons  whose  names  were  con- 
cealed. Also  by  means  of  hired  agents  Quigg  caused  the  or- 
ganization of  numerous  citizens'  associations  whose  influence 
was  used  at  Albany  for  or  against  pending  measures  in  which 
his  employers  were  interested. 

Previous  to  the  merger  of  the  Ryan  and  Belmont  interests, 
which  merger  was  accompanied  by  an  addition  of  $108,000,000 
of  watered  stock,  Quigg  created  "  citizens'  associations  "  to 
oppose  Belmont's  designs;  subsequently  he  served  the  com- 
bination. His  expenses,  he  said,  ranged  from  $50,000  for 
manufacturing  a  great  petition  from  the  tenement-house  dis- 
trict to  $500  paid  to  individuals  for  "  agitation."  Among  those 
whom  he  employed  directly  or  indirectly  to  make  arguments 
at  Albany  were  two  men  who  had  recently  become  Justices  of 
the  Supreme  Court  of  New  York  State.  Quigg  also  admitted 
that  he  employed  detectives  to  watch  Col.  W.  N.  Amory,  who 
was  persistently  exposing  and  denouncing  the  traction  looters 
and  corruptionists  and  demanding  that  they  be  prosecuted 
criminally.  As  a  matter  of  fact  Amory  was  not  only  watched 
but  hounded  and  persecuted.23 

The  investigation  by  the  Legislative  "  Graft "  Committee, 
in  1910,  supplied  certain  missing  links,  and  disclosed  who  had 
received  part  of  the  corruption  funds.  The  books  of  a  Wall 
Street  brokerage  house,  used  as  an  intermediary,  showed  that 
State  Senator  Goodsell,  Assemblyman  Louis  Bedell  and  other 
active  members  of  the  New  York  Legislature  had  received 
large  sums,  during  the  sessions  of  1900-1904,  from  officers  of 
the  Metropolitan  Street  Railway  Company. 

But  no  criminal  proceedings  were  brought  against  Ryan.  In 
a  statement  published  on  May  26,  1909,  Col.  Amory  charged 

23  "  Investigation  of  Interborough-Metropolitan  Company,"  Etc.,  Pub- 
lic Service  Commission,  1907,  pp.  1395-1559. 


UNDER    CHIEF   JUSTICE    WHITE  761 

that  when  a  Grand  Jury  was  called  in  1907  to  investigate  the 
criminal  practices  of  Ryan  and  associates  of  the  Metropolitan 
Street  Railway  Company,  the  foreman  of  the  Grand  Jury  was 
a  director  in  Ryan's  Equitable  Life  Assurance  Society. 

Col.  Amory  also  charged  that  in  April,  1903,  Daniel  Mason, 
Jerome's  former  law  partner,  and  William  H.  Page,  Jr.,  an- 
other of  the  Metropolitan's  lawyers,  had  attempted  to  bribe 
him  (Amory)  while  a  State's  witness,  with  $200,000,  to  with- 
draw the  charges  that  Amory  had  filed  with  Jerome  against 
the  Metropolitan  Street  Railway  Company. 

The  particular  Grand  Jury  investigating  the  matter  of  the 
$692,292.82  paid  for  the  paper  franchise  of  the  Cortland  and 
Wall  Street  Ferries  Railroad  Company,  stated  in  its  present- 
ment: 

"  That  one  of  the  questions  that  the  Grand  Jury  was  investi- 
gating was  whether  the  said  Thomas  F.  Ryan  and  others  in  con- 
nection with  the  sale  of  the  said  railway  company  had  stolen 
the  sum  o!  $111,652.78."  Of  the  particular  item  of  $692,- 
292.82  looted,  the  amount  mentioned  —  $111,652.78  —  was 
supposed  to  be  Ryan's  share. 

Paul  D.  Cravath,  Governor  Hughes'  former  law  partnerf 
was  in  court  zealously  looking  out  for  Ryan's  interests.  Crav- 
ath had  refused  to  answer  certain  vital  interrogations,  and  the 
question  came  up  whether  he  should  be  punished  for  contempt 
of  court.  He  was  not.  During  this  time  District  Attorney 
Jerome,  as  he  admitted  at  a  hearing  on  May  7,  1908,  on  the 
charges  against  him,  "  dined  with  Allan  Ryan  [one  of  Thomas 
F.  Ryan's  sons]  and  his  wife  at  Sherry's  and  Martin's." 
Jerome  said  he  was  not  a  friend  of  the  Ryan  family,  "  but  I 
think  young  Ryan  is  a  fine  chap,  but  can't  claim  anything  more 
than  a  pleasant  acquaintance." 

On  January  27,  1908,  Judge  Rosalsky,  in  the  Court  of  Gen- 
eral Sessions,  New  York  City,  severely  arraigned  District 
Attorney  Jerome,  declaring  that  Jerome  had  so  conducted  the 
examination  of  Thomas  F.  Ryan  before  the  Grand  Jury  as 


762  HISTORY   OF    THE    SUPREME   COURT 

probably  to  invalidate  any  indictments  which  that  body  might 
have  found  against  Ryan. 

Governor  Hughes  appointed  a  commissioner  to  hear  the  evi- 
dence upon  which  the  charges  against  Jerome  were  made. 
Jerome  admitted  that  when  Ryan,  Brady  and  Vreeland  were 
before  the  Grand  Jury  he  had  asked  leading  questions  of  them. 
He  further  testified  that  he  had  not  asked  the  Grand  Jury 
to  indict  Ryan  in  the  matter  of  the  Wall  Street  and  Cortland 
Street  Ferries  Railway  transaction.  "  No,"  he  said,  "  I  will 
never  advise  that  an  indictment  be  found  in  that  case."  But 
an  inspection  of  the  minutes  of  the  Grand  Jury  of  November, 
1907,  disclosed  that  Jerome  had  told  Brady  that  he  (Brady) 
"  and  Ryan  and  Whitney  and  this  outfit  were  in  cahoots  and 
in  some  way  got  $700,000  of  the  Metropolitan  Securities' 
money.  You  are,  practically  every  one  of  you,  under  sus- 
picion and  accused  of  being  thieves.  .  .  ."  At  the  hear- 
ing Jerome  was  asked  as  to  a  certain  contribution  made  to  his 
political  campaign  by  Samuel  Untermeyer,  counsel  for  Hyde 
of  the  Equitable  Life  Assurance  Society,  but  he  denied  that  any 
ulterior  purposes  were  behind  it.  Ryan  had  admitted  on  the 
witness  stand  that  he  (Ryan)  had  contributed  $500,000  to  the 
national  Democratic  Party  in  1900. 

Hughes  Exonerates  Jerome. 

The  Commissioner's  report  "  whitewashed "  Jerome,  and 
Governor  Hughes  dismissed  the  charges,  saying :  "  Nothing 
has  been  presented  which  furnishes  any  just  ground  for  im- 
peaching the  good  faith  of  the  District  Attorney  in  connection 
with  any  of  the  transactions  set  forth  nor  has  anything  been 
shown  which  would  justify  his  removal  from  office."  2* 

2*  Col.  Amory  did  not  think  that  Jerome  had  been  corrupted  by  means 
of  money.  "  When  the  day  of  retribution  comes  .  .  ."  wrote  Col. 
Amory,  on  March  18,  1906,  ".  .  .  It  will  then  be  disclosed  that  t"here 
are  other  than  money  bribes.  I  believe  Mr.  Jerome  incapable  of  doing 
a  corrupt  act  for  money." — "  Truth  About  Metropolitan,"  p.  2.  In  the 


UNDER    CHIEF   JUSTICE    WHITE  763 

In  1910  came  the  disclosures  before  a  legislative  committee 
revealing  the  consecutive  briberies  and  corruptions  carried  on 
in  the  New  York  Legislature  by  the  Metropolitan  Street  Rail- 
way's officials,  by  fire  insurance  companies  and  by  other  cor- 
porations. Ten  of  the  principal  legislators  implicated  were 
the  very  same  who  for  years  had  ruled  Senate  and  Assembly 
committees. 

The  Obliging  Judge  Lacombe. 

In  the  meantime,  learning  that  Attorney-General  Jackson  of 
New  York  State  contemplated  throwing  the  looted  railway 
system  into  the  hands  of  receivers,  Ryan  and  associates  hur- 
ried to  apply  for  the  appointment  of  Adrian  Joline  and  Douglas 
Robinson  as  receivers.  Joline  was  an  old  attorney  of  the  Met- 
ropolitan Street  Railway  Company,  and  Robinson  was  Presi- 
dent Roosevelt's  brother-in-law.  Lacombe  granted  the  applica- 
tion, thus  forestalling  the  attempt  of  Attorney-General  Jackson 
to  put  in  receivers  hostile  to  Ryan  and  associates.  Judge 
Lacombe  was  a  protege  of  William  C.  Whitney,  and  had  been 
placed  on  the  Circuit  Court  by  Whitney's  efforts. 

In  the  course  of  his  remarks  before  the  Public  Service  Com- 
mission, in  November,  1910,  Col.  Amory  unsparingly  de- 
nounced Judge  Lacombe.  "  There  is  a  Judge  on  the  bench," 
he  said,  "  who  has  protected  these  criminals.  He  is  the  crea- 
ture of  William  C.  Whitney  and  the  tool  of  Thomas  F.  Ryan. 

'  There  has  been  a  plan  successfully  put  on  foot  to  keep  the 
traction  thieves  from  prison  and  from  disgorging  the  millions 
they  have  made  away  with. 

"  Ryan  still  controls  the  street  railways  of  this  city.  Back 
of  these  receivers  who  defy  the  Public  Service  Commission, 
and  treat  it  with  contempt  and  ignore  the  laws  of  the  State  is 

same  pamphlet  Col.  Amory  stated  that  Jerome  knew  specifically  of  the 
vast  plunderings  as  early  as  1903  and,  that  he  had  then  encouraged 
Amory  to  believe  that  the  looters  would  be  prosecuted. 


764  HISTORY   OF   THE   SUPREME   COURT 

Judge  Lacombe  .  .  .  and  back  of  Lacombe  stands 
Ryan."  25  When  Judge  Lacombe  was  challenged  to  make  a 
categorical  reply  he  refused. 

Some  time  ago  the  statute  of  limitations  intervened  to  pre- 
vent any  possible  prosecution  of  the  traction  looters,  which  was 
precisely  the  point  that  they  were  fighting  for  so  desperately. 
They  are  now  immune.  Ryan's  fortune  is  estimated  to  be 
more  than  $225,000,000.  His  great  African  concessions  of  do- 
main, with  incalculably  rich  resources,  which  he  secured  in 
association  with  the  late  King  Leopold  of  Belgium  and  others, 
may  signify  that  his  private  fortune  is  perhaps  double  that 
sum. 

"  Rule  of  Reason  "  Speech. 

When  occupying  the  office  of  Governor  of  New  York  State 
(in  which  he  served  two  terms,  having  been  reflected  in  1908), 
Hughes  did  nothing  at  basis  to  antagonize,  and  much  to  win 
the  favor,  of  great  corporate  interests.  Quite  true,  his  church- 
bred  opposition  to  vulgar  gambling  asserted  itself  in  his  caus- 
ing to  be  enacted  a  statute  forbidding  the  operation  of  race- 
track gambling,  for  which  deed  he  was  much  praised  by  pious 
people..  These  good  folk,  however,  were  not  at  all  concerned 
about  stock-market  gambling,  and  neither  was  Governor 
Hughes.  "  Reforms "  of  the  race-track  sort  did  not  touch 
the  fundamentals  of  society,  and  were,  therefore,  "  safe  and 
sane."  At  the  same  time  Governor  Hughes  opposed  or  vetoed 
certain  measures  affecting  large  corporate  interests.  He  found 
objections  to  the  constitutional  amendment  providing  for  an 
income  tax.  He  vetoed  the  two-cent  railroad  fare  bill,  the 
five-cent  Coney  Island  fare  bill  and  other  measures.  And  when 
President  Taft  appointed  him  to  the  Supreme  Court  of  the 
United  States,  no  opposition  was  manifested  by  any  prominent 
capitalist  interest.  Indeed,  William  J.  Bryan,  three  times 

25  "  Reorganization  Plan,"  Public  Service  Commission  Hearing,  Sten- 
ographic Minutes,  pp.  2407-2409. 


UNDER    CHIEF   JUSTICE    WHITE  765 

Democratic  candidate  for  President  of  the  United  States, 
openly  charged  Taft  with  packing  the  Supreme  Court  with 
pro-trust  men.  In  a  statement  published  on  October  12, 
191 1,26  Bryan  asserted: 

"  In  its  1908  platform  the  Republican  party  promised  to 
amend  the  Sherman  Anti-Trust  Law.  During  the  campaign 
of  1908  Governor  Hughes,  of  New  York/ interpreted  that 
promise  to  mean  that  '  the  Rule  of  Human  Reason '  must  be 
accepted. 

"  Later  Taft  appointed  Governor  Hughes,  as  well  as  other 
men  of  his  mold  of  thought,  to  the  United  States  Supreme 
Court. 

"  George  W.  Perkins,  associated  with  J.  P.  Morgan  in  trust 
control,  delivered  a  speech  recently  in  which  he  complained 
that  Republican  Congressmen  had  not  tried  to  redeem  their 
platform  promise,  but  that  it  had  been  redeemed  by  the  Su- 
preme Court  in  the  recent  trust  decision  wherein  Governor 
Hughes'  '  Rule  of  Reason '  was  applied. 

"  Here  we  have  it.  Governor  Hughes  was  put  forward  to 
represent  the  Republican  Party ;  he  assured  the  trusts  that  '  the 
Rule  of  Reason '  for  which  they  had  been  waiting  for  more 
than  ten  years  would  be  adopted.  Congress  refused  to  keep 
the  promise,  so  Governor  Hughes  was  put  on  the  Supreme 
Bench  and  helped  to  amend  the  law  in  accordance  with  the 
Republican  promise,  and  now  President  Taft,  in  whose  inter- 
est the  promise  was  made  and  who  appointed  Governor  Hughes, 
says  that  the  Anti-Trust  law  as  amended  by  the  court  must 
not  be  disturbed. 

"  Here  is  a  chain  of  circumstantial  evidence  sufficient  to 
convict  in  a  criminal  court." 

In  another  statement,  published  on  October  20,  1911,  in  the 
form  of  an  open  letter  to  President  Taft,  Bryan  accused  Taft 
of  having  appointed  pro-trust  men  to  the  Supreme  Court. 

20  Published  originally  in  Bryan's  periodical  "  The  Commoner,"  and 
republished  in  the  newspapers. 


766  HISTORY   OF   THE    SUPREME    COURT 

"  You  appointed  to  the  Chief-Justiceship  of  the  Supreme 
Court  Justice  White  who  thirteen  years  ago  took  the  trusts' 
side  of  the  trust  question.  You  appointed  him  over  the  head 
of  Justice  Harlan  who  had  served  longer  and  with  more  dis- 
tinction and  who  had  taken  the  people's  side  on  trust  questions. 
.  .  .  You  appointed  Governor  Hughes  to  the  Supreme 
Court  Bench  after  he  had  interpreted  your  platform  to  suit 
the  trusts  and  proceeded  tojoin  Chief  Justice  White  and  carry 
out  your  platform  promise  to  amend  the  Anti-Trust  law  by 
weakening  it.  .  .  ."  Bryan  asked  Taft  to  make  public  the 
recommendations,  written  and  verbal,  upon  which  he  had  made 
these  and  other  appointments  "  and  let  the  people  know  the 
influences  that  dictate  your  appointments." 

President  Taft  replied  weakly  and  evasively,  saying  that  he 
considered  the  questions  "  an  insult "  to  the  Supreme  Court 
of  the  United  States. 

Had  President  Taft  been  bold  enough  to  have  expressed 
the  facts  as  clearly  as  he  knew  and  adapted  them,  he  would 
have  said  that  Bryan's  charge  was  a  compliment,  not  an  insult. 
The  trusts  were  the  dominant  economic  factor  of  the  day ; 
being  so,  why  should  they  not  have  their  representatives  on 
the  Supreme  Court  Bench  as  well  as  in  other  departments  of 
Government?  The  processes  of  the  capitalist  system,  for 
which  Government  is  merely  a  registering  machine,  made  this 
inevitable.  Moreover,  as  we  have  previously  pointed  out,  the 
trusts  were  a  necessary  outcome  of  the  capitalist  struggle,  and 
represented  a  higher  form  of  industrial  organization  than  the 
abandoned  competitive  stage,  which  Bryan,  the  mouthpiece  of 
his  fading  class,  has  the  blindness  and  folly  to  wish  to  see 
restored.  For  the  ends  of  progress  it  was,  indeed,  salutary 
that  Taft  should  have  appointed  pro-trust  judges.  Finally,  it 
was  not  Taft  that  essentially  decided  affairs,  but  the  great 
force  of  magnates  owning  the  resources  and  industries  not 
only  of  the  United  States  but  of  other  parts  of  the  world. 


UNDER   CHIEF   JUSTICE   WHITE  767 

Justice  Van  Devanter. 

Associate  Justice  Moody  resigning,27  President  Taft's  next 
appointment  to  the  Supreme  Court  of  the  United  States  was 
Willis  Van  Devanter.  He  was  born  in  1859;  his  father  was 
a  lawyer  of  means  at  Marion,  Indiana.  Quitting  that  town,  in 
1884,  Willis  Van  Devanter  settled  at  Cheyenne,  Wyoming.  A 
Territory  at  that  time,  Wyoming  was  sparsely  settled,  and  its 
politics  were  controlled  by  the  Union  Pacific  Railway  Company 
and  by  sheep  and  cattle  ranchers,  both  of  which  interests  were 
seizing  natural  resources  on  every  hand.  Among  the  men 
conspicuous  in  Wyoming  politics  was  Francis  E.  Warren,  a 
former  stock  raiser  in  Massachusetts,  and  Clarence  D.  Clark. 
Warren  was  Territorial  Governor,  and  he  became  the  owner 
of  extensive  ranches,  often  by  methods  a  description  of  which 
would  form  too  intricate  a  digression  here ;  lands  that  had  been 
public  property  were  converted  into  Warren's  private  estate. 
To  Warren  and  Clark  the  youthful  Van  Devanter  closely  ad- 
hered. 

Van  Devanter  became  the  City  Attorney  of  Cheyenne;  he 
was  then  elected  to  the  Legislature ;  and  when  Wyoming  was 
admitted  as  a  State,  he  was  elected  Chief  Justice  of  the 
Wyoming  Supreme  Court,  for  four  years.  But  he  resigned 
in  the  year  1890,  and  became  a  member  of  the  law  firm  of 
Lacey  and  Van  Devanter.  This  firm  had  previously  been 
that  of  Corlett,  Lacey  and  Riner.  W.  W.  Corlett  had  been  for 
more  than  twenty  years  an  attorney  for  the  Union  Pacific  Rail- 
road, and  had  represented  that  railroad  in  a  large  number  of 
cases.  Likewise  had  the  firm  of  Corlett,  Lacey  and  Riner. 
Corlett  had  also  been  the  attorney  for  large  irrigation  and  lum- 
ber companies  such  as  the  Hilliard  Flume  and  Lumber  Com- 
pany. 

27  We  have  previously  related  how  when  Justice  Moody  resigned, 
Senator  Lodge  succeeded  in  having  a  bill  passed  by  Congress  granting 
him  a  pension  of  $12,500  a  year. 


768  HISTORY   OF   THE   SUPREME   COURT 

Conditions  in  Wyoming. 

The  fraudulent  acquisition  of  land  in  Wyoming  was  great 
and  incessant.  In  his  exhaustive  report  for  1885,  Commis- 
sioner Sparks  of  the  United  States  General  Land  Office  related 
how  nearly  the  whole  of  Wyoming  and  a  large  portion  of 
Montana  had  been  fraudulently  surveyed,  and  the  lands  on 
the  streams  fraudulently  possessed  under  the  desert  land  act, 
to  the  exclusion  of  actual  settlers.  Extensive  coal  deposits 
had  been,  or  were  being,  fraudulently  acquired  in  mass 
"  through  expedited  surveys,  followed  by  fraudulent  pre-emp- 
tion and  commuted  homestead  entries."  28  Much,  if  not  all 
of  these  available  coal  deposits  had  been  seized  under  color 
of  law  by  men  acting  for  Jay  Gould,  controlling  the  Union 
Pacific  Railroad.29  The  Pacific  Railway  Commission  reported, 
in  1887,  that  the  Union  Pacific  Railway  Company  had  fraudu- 
lently appropriated  coal  lands  of  inestimable  value,  and  that 
of  the  vast  area  of  lands  which  it  had  grabbed  it  had  sold  not 
less  than  7,000,000  acres  without  any  patent  from  the  Govern- 
ment.30 The  fraudulent  processes  of  acquiring  Wyoming 
coal  lands  are  detailed  at  great  length  in  other  official 
reports.31 

As  for  the  fraudulent  seizures  by  cattle  companies  in  Wyom- 
ing as  well  as  elsewhere  in  the  West,  only  a  few  suggestive 
details  of  a  mass  can  be  given  here.  "  In  Wyoming,"  re- 
ported Acting  Commissioner  Harrison  of  the  General  Land 
Office  to  Secretary  of  the  Interior  Teller,  on  March  14, 


28  House  Executive  Documents,  First  Session,  Forty-Ninth  Congress, 
1885-1886,  Vol.  II :  167. 

29  The  Interstate  Commerce  Commission  reported  to  the  United  States 
Senate  in  1908  that  the  acquisition  of  these  coal  lands  had  "  been  at- 
tended with   fraud,  perjury,  violence  and  disregard  of  the   rights  of 
individuals."     The  report  stated  the  specific  methods  used. 

30  Report  of  Pacific  Railway  Commission,  Vol.  1 :  192. 

31  See,  for  example,  Annual  Report  for  1889  of  Acting  Commissioner 
W.  M.  Stone  of  the  U.  S.  General  Land  Office,  pp.  55,  56,  etc. 


UNDER    CHIEF   JUSTICE    WHITE  769 

"  one  hundred  and  twenty-five  cattle  companies  are  reported 
as  having  fencing  on  the  public  lands ;  "  the  Wyoming  Cattle 
Company,  composed  of  Scotch  capitalists,  was  one  of  these 
companies.32 

These  operations  went  on  without  cessation.  "  Seventy- 
eight  desert  land  entries,"  reported  S.  M.  Stockslager,  Commis- 
sioner of  the  General  Land  Office,  in  1888,  "  embracing  48,000 
acres,  were  entered  in  the  Cheyenne  District,  Wyoming,  and 
transferred  immediately  after  proof  to  a  land  and  ditch  com- 
pany, which  had  been  previously  organized  for  the  purpose  of 
acquiring  title  to  said  lands.  Most  of  the  entry  men  lived  in 
the  Eastern  States  and  had  never  seen  the  land,  nor  did  they 
make  any  expenditure  thereon.  The  purchase  money  and  all 
other  expenses  were  paid  by  the  company  who  evidently  used 
the  names  of  the  entrymen  in  making  the  entries."  33 

These  details  selected  from  a  great  number,  give  some  slight 
picture  of  conditions  in  Wyoming  during  the  years  when  Van 
Devanter  was  an  attorney  and  judge.  From  1891  to  1895  the 
firm  of  Lacey  and  Van  Devanter  consecutively  represented  the 
law  interests  of  the  Union  Pacific  Railway.34  They  also  were 
attorneys  for  the  Powder  River  Cattle  Company,  the  Searight 
Cattle  Company,  the  Frontier  Land  and  Cattle  Company,  the 
Springvale  Ditch  (Irrigation)  Company,  the  Moorcraft  Ranch 
Company  and  other  companies.35 

82  "  Unauthorized  Fencing  of  Public  Lands,"  U.  S.  Senate  Documents, 
First  Session,  Forty-eighth  Congress,  1883-1884,  Doc.  No.  127:  2. 

83  Annual  Land  Office  Report,  1888,  p.  49. 

31  See,  Union  Pacific  vs.  Redman,  III  Wyoming  Reports:  679;  the 
same  vs.  Link,  Ibid.,  680;  the  same  vs.  Gilland,  IV  Ibid.,  396;  the 
same  vs.  Schenk,  V  Ibid.,  431 ;  the  same  vs.  Gilland,  VI  Ibid.,  187, 
etc. 

35  See,  Powder  River  Cattle  Company  vs.  Board  of  County  Com- 
missioners, III  Wyoming  Reports,  597;  Searight  Cattle  Company 
vs.  same,  Ibid.,  778 ;  Frontier  Land  and  Cattle  Company  vs.  Bald- 
win, Ibid.,  765.  These  were  cases  in  which  taxes  were  contested. 
For  other  cases  enumerated  see  IV  Ibid.,  168  and  V  Ibid.,  52.  Lacey 
and  Van  Devanter  also  represented  the  Union  Mercantile  Company 
(III  Ibid.,  418)  and  the  Traders'  Insurance  Company  (IV  Ibid.,  423). 


HISTORY   OF  THE   SUPREME   COURT 


The  Artist  Case. 

Van  Devanter,  it  seems,  was  also  associated  with  John  M. 
Thurston,  a  Nebraska  politician  and  a  United  States  Senator 
from  that  State.  The  proceedings  in  the  case  of  Union  Pa- 
cific Railway  Company  vs.  Artist  give  the  names  of  Willis  Van 
Devanter  and  Thurston  on  the  brief  submitted  for  the  rail- 
road.38 

This  case  and  its  disposition  deserve  narration.  On  October 
4,  1889,  Andrew  S.  Artist,  a  Union  Pacific  Railway  worker, 
was  injured  while  at  work;  his  foot  and  leg  were  badly  hurt. 
He  was  taken  to  a  hospital  maintained  at  Denver  by  the  com- 
pany for  its  employes.  To  support  this  hospital  the  Union 
Pacific  forced  each  one  of  its  employes  to  contribute  twenty- 
five  cents  a  month;  if  any  additional  amount  was  needed,  the 
company  contributed  it. 

In  the  course  of  the  treatment  of  Artist  at  the  hospital  the 
physicians  inserted  a  rubber  drainage  tube  in  his  leg.  It  was 
admitted  that  because  of  the  carelessness  of  physicians  or  at- 
tendants a  portion  of  the  tube  was  left  in  the  leg  as  the  wound 
healed  and  it  remained  there  when  he  was  discharged  as  cured, 
on  January  7,  1890.  The  result  of  this  malpractice  caused 
Artist  great  suffering  and  partial  disability  until  the  remnant 
of  the  tube  was  removed  by  a  surgical  operation  in  April,  1892. 

Now  on  January  13,  1890,  six  days  after  his  discharge,  at  a 
time  when  both  parties  were  ignorant  of  the  fact  that  a  piece 
of  tube  remained  in  the  leg,  Artist,  in  consideration  of  receiv- 
ing $150,  had  been  induced  to  sign  a  release  from  damages. 

But  after  suffering  for  more  than  two  years  and  being  re- 
duced to  partial  disability  because  of  the  blunder  at  the  hos- 
pital, Artist  brought  suit  for  damages  and  obtained  a  judg- 
ment in  the  lower  court. 

36  Thurston  with  John  F.  Dillon  regularly  appeared  for  the  Union 
Pacific  Railroad.  See  161  United  States  Reports,  456;  Ibid.,  95;  163 
Ibid.,  487;  Ibid.,  611  ;  Ibid.,  692;  Ibid.,  709,  etc. 


UNDER    CHIEF   JUSTICE    WHITE  77! 

Thurston  and  Van  Devanter  appealed  the  case  for  the  Union 
Pacific  Railway  to  the  United  States  Circuit  Court  of  Appeals, 
District  of  Wyoming.  On  February  12,  1894,  Judge  Sanborn 
reversed  the  judgment  given  in  the  lower  court.  Notwith- 
standing the  uncontested  fact  that  the  railroad's  employes  were 
compelled  to  contribute  twenty-five  cents  a  month  to  the  hos- 
pital's maintenance,  Judge  Sanborn  decided  in  favor  of  the 
Union  Pacific  Railway  Company  on  these  remarkable  grounds : 

That  a  master  who  sent  his  servant  for  treatment  to  a  hos- 
pital maintained  by  the  master  for  charitable  purposes  (!!) 
was  not  responsible  for  injuries  caused  to  the  servant  by  the 
negligence  of  hospital  attendants,  "  where  the  master  has  ex- 
ercised ordinary  care  in  selecting  such  attendants."  Further, 
that  a  hospital  maintained  by  the  railroad  company  for  the 
free  treatment  of  its  employes,  and  "  supported  partly  by 
monthly  contributions  of  employes  and  partly  by  the  com- 
pany, and  maintained  for  profit,  is  a  charitable  institution."  37 

Thus,  although  the  compulsory  contributions  of  the  rail- 
road's workers  supported  the  hospital,  they  had  no  voice  in 
the  managing  of  it,  and  were  virtually  adjudged  paupers  de- 
barred from  getting  damages  for  the  malpractice  of  physi- 
cians. We  have  given  this  case  and  extraordinary  decision 
exactly  as  the  facts  are  stated  in  the  court  records. 

Van  Devanter's  patrons  and  pushers,  Warren  and  Clark, 
became  United  States  Senators.  Van  Devanter  had  been  of 
great  assistance  to  them;  he  had  been  chairman  of  the 
Wyoming  Republican  State  Committee  in  1892,  a  delegate 
to  the  Republican  National  Convention  and  a  member  for  the 
Wyoming  Republican's  on  the  Republican  National  Commit- 
tee in  1896. 

Through  the  influence  of  Senators  Warren 38  and  Clarke, 

37  Union  Pacific  R'way  Co.  vs.  Artist,  60  Federal  Reports,  365-370. 
The  italics  are  mine. —  G.  M. 

38  Warren  was  the  head  of  the  Warren  Land  and  Live  Stock  Com- 
pany of  Wyoming.     He  became  the  chairman  of  the  Senate  Military 
Affairs   Committee.    There   was  a   small  public   forest   reserve  called 


772  HISTORY  OF   THE   SUPREME   COURT 

Van  Devanter,  in  1897,  was  appointed  by  President  McKinley 
an  assistant  United  States  Attorney-General,  and  was  assigned 
to  the  Interior  Department  which,  it  is  needless  to  say,  had 
jurisdiction  over  the  public  lands. 

In  1903  a  vacancy  occurred  on  the  bench  of  the  Eighth 
Judicial  Circuit.  Warren  and  Clarke  were  now  high  per- 
sonages in  the  Senate  and  of  great  influence  at  the  White 
House ;  Warren  headed  the  Senate  Committee  on  Military 
Affairs,  and  Clark  was  chairman  of  the  Senate  Committee 
on  Judiciary.  Responsive  to  their  suggestions,  President 
Roosevelt  appointed  Van  Devanter  to  the  Circuit  Court30 
where  he  sat  with  Judge  Sanborn,  the  identical  judge  who  had 
decided  the  Artist  case  nine  years  previously  when  Van  De- 
vanter and  Senator  Thurston  represented  the  Union  Pacific 
Railway. 

Bryan's  Comments. 

Judge  Van  Devanter's  appointment  to  the  Supreme  Court 
of  the  United  States  was  severely  and  pointedly  criticized  by 
W.  J.  Bryan,  in  one  of  the  series  of  statements  and  speeches 
recently  issued  by  him.  In  a  speech  at  Lincoln,  Nebraska, 
on  November  5,  1911,  Bryan  asserted  that  Van  Devanter  was 
appointed  by  President  Taft  because  of  his  known  bias  in 
favor  of  the  dominant  corporate  interests.  "  Judge  Van  De- 

"  Crow  Creek  "  in  Wyoming  which  was  a  military  forest  reserve  and 
which  the  War  Department  wanted  for  military  maneuvers.  This 
reservation,  however,  had  been  leased  to  various  small  sheep  raisers 
with  the  privilege  of  grazing.  The  reservation  was  leased  to  War- 
ren's company,  and  in  1910  the  small  cattle  men  were  ejected. 

39  Statement  in  a  laudatory  biography  of  Van  Devanter,  the  Sat- 
urday Evening  Post,"  issue  of  March  18,  1911.  "Mr.  Van  Devan- 
ter," said  this  account,  "  looks  like  a  Western  man  and  acts  like  one. 
He  is  active,  virile,  alert  —  although  not  quick  of  speech.  He  is 
good  looking,  good-humored  and  most  companionable.  He  is  an 
earnest  student  and  a  prodigious  worker.  Although  he  is  essentially 
a  jurist,  he  keeps  closely  in  touch  with  every  phase  of  life  and  is  much 
more  human  than  the  usual  lawyer  in  whom  the  judicial  temperament 
predominates.  He  is  an  outdoor  man,  who  fishes,  hunts,  rides,  plays 
golf  and  has  fun." 


UNDER    CHIEF   JUSTICE    WHITE  7/3 

vanter,"  Bryan  asserted,  "  is  the  man  who  gave  a  decision 
giving  to  the  Union  Pacific  Railroad  land  along  the  right  of 
way  amounting  in  value  to  millions  of  dollars ;  he  is  the  judge 
who  held  that  two  railroads  running  parallel  to  each  other 
for  two  thousand  miles  were  not  competing  lines,  one  of  the 
roads  being  the  Union  Pacific  Railroad."  Bryan  continued : 

"  President  Taft  knew  of  these  decisions,  for  he  was  noti- 
fied by  letter  before  he  made  the  appointment,  and  the  man 
who  wrote  received  a  letter  from  the  President's  secretary 
saying  the  information  would  receive  consideration. 

"  And  in  spite  of  the  fact  that  the  President  knew  that  Van 
Devanter  was  biased  in  favor  of  the  great  interests,  he  ap- 
pointed him  to  the  Supreme  Bench.  Upon  whose  recommen- 
dation was  the  appointment  made  ?  Will  President  Taft  make 
this  information  public? 

"  I  have  read  the  President  does  not  like  being  questioned 
by  me  concerning  the  Supreme  Court  appointments,  and  that 
he  has  said  the  questions  are  an  insult  to  him  and  to  the  judge 
as  well.  I  have  to  say  that  if  President  Taft  is  that  thin- 
skinned  he  will  have  to  get  used  to  it,  for  I  will  have  considera- 
bly more  to  say  before  I  am  through  with  the  subject." 

Reporting  Taft's  appointment  of  Van  Devanter,  a  Washing- 
ton dispatch  published  in  a  friendly  partisan  newspaper,  the 
New  York  Press,  issue  of  December  12,  1910,  stated,  "  It  was 
said  to  have  been  Mr.  Knox's  influence  which  finally  turned 
the  tide  in  favor  of  Judge  Van  Devanter  as  against  Judge 
William  C.  Hook,  also  of  the  Eighth  Circuit."  The  Knox  re- 
ferred to  was  Philander  C.  Knox,  former  attorney  for  the 
Carnegie  Steel  Company,  whose  appointment  as  Attorney-Gen- 
eral of  the  United  States,  Andrew  Carnegie,  the  powerful  multi- 
millionaire magnate,  had  recommended  to  President  McKinley, 
and  whose  former  law  partner,  Judge  Reed,  has  been  so  large 
a  factor  in  the  Directorate  of  the  mighty  Steel  Trust. 

Knox  has  been  a  sort  of  premier  under  the  three  adminis- 
trations of  McKinley,  Roosevelt  and  Taft ;  and  in  view  of  the 


774  HISTORY   OF   THE    SUPREME   COURT 

Supreme  Court's  "  Rule  of  Reason  "  decision  (described  later 
in  this  chapter)  it  is  significant  that  Knox,  in  a  speech  deliv- 
ered before  the  Pittsburg  Chamber  of  Commerce,  on  October 
14,  1902,  outlined  virtually  the  very  doctrines  that  the  Supreme 
Court  of  the  United  States  adopted,  nearly  nine  years  later,  in 
its  "  Rule  of  Reason  "  decision  applying  to  the  trusts.  Thus 
can  glimpses  be  obtained  of  the  powerful  capitalists,  or  their 
spokesmen,  asserting  the  construction  of  laws  that  they  wanted 
and  needed,  and  thus  also  can  be  seen  how  decisions  have 
precisely  followed  these  requirements. 

Of  all  of  the  appointments  to  the  Supreme  Court  of  the 
United  States  by  President  Taft  that  of  Joseph  R.  Lamar,  of 
Georgia,  provoked  least  criticism,  because  so  little  was  known 
of  his  career. 

Justice  Lamar  as  Railroad  Attorney. 

Judge  Lamar  was  born  in  1857 ;  his  father  was  a  Camp- 
bellite  preacher  at  Augusta;  his  maternal  grandfather  was 
Joseph  Rucker,  owner  of  eleven  hundred  slaves.  The  Judge 
was  a  second  cousin  of  L.  Q.  C.  Lamar,  of  Mississippi,  whose 
career  both  before  and  after  his  appointment  as  an  Associate 
Justice  of  the  Supreme  Court  of  the  United  States  has  been 
depicted  in  a  previous  chapter.  In  his  practice  of  law  at 
Augusta,  Joseph  R.  Lamar's  clientele  seem  to  have  been  largely 
corporate  interests. 

One  of  the  most  conspicuous  of  his  cases  was  that  of  the 
Central  Trust  Company  of  New  York  vs.  the  Marietta  and 
North  Georgia  Railroad  Company.  Lamar  represented  the 
Central  Trust  Company,  one  of  the  most  powerful  of  such  com- 
panies in  the  United  States.  The  action  was  brought  by  the 
Central  Trust  Company  to  foreclose  on  an  extensive  mortgage 
it  held  to  cover  an  issue  of  bonds  of  the  Marietta  and  Georgia 
Railroad  Company.40 

40  See,  75  Federal  Reporter:  200.  (May  12,  1806.)  The  Central 
Trust  Company  also  had  extensive  holdings  in  other  railroads.  Ac- 


UNDER    CHIEF    JUSTICE   WHITE  775 

In  1903  Lamar  was  appointed  to  the  State  Supreme  Court 
of  Georgia.  After  his  resignation  from  that  court  he  ree'n- 
tered  law  practice  at  Augusta,  forming  a  partnership  with 
Judge  E.  H.  Callaway  under  the  firm  name  of  Lamar  and 
Callaway.  Not  long  before  his  appointment  to  the  Supreme 
Court  of  the  United  States  he  was  one  of  counsel  for  the  Cen- 
tral of  Georgia  Railway  Company  in  a  case  the  decision  in 
which  by  the  Supreme  Court  of  Georgia  was  regarded  in 
financial-railway  quarters  as  "  epoch-making."  41 

Previously  it  had  been  generally  ruled  by  the  courts,  espe- 
cially in  New  York,  that  an  income  bond  practically  gave  the 
holder  no  greater  rights  to  interest  than  the  stockholders  to 
dividends.  The  courts,  these  rulings  had  further  held,  could 
not,  save  in  exceptionally  scandalous  cases,  interfere  with  the 
decision  of  railroad  directors  not  to  pay  dividends.  The 
Georgia  Supreme  Court,  however,  held  that  the  courts  would 
determine  for  themselves  whether  the  income  was  really 
"  earned "  regardless  of  what  action  the  directors  took. 
Wollman's  account  of  this  case  proceeds: 

"  In  the  Georgia  case  there  were  many  discussions  as  to 
what  was  income.  I  will  refer  only  to  two.  The  railway 
company  owned  all  the  stock  of  a  money-earning  steamship 
company.  The  steamship  company  paid  the  railroad  company, 
its  sole  stockholder,  a  large  sum  of  money,  but  did  not  say 
that  it  paid  it  as  dividends ;  in  fact  the  steamship  company's 
directors  did  not  declare  any  dividends.  The  money  was  un- 
cording to  a  list  of  principal  railroad  stockholders  made  public  by  the 
Interstate  Commerce  Commission,  in  December,  1909,  the  Central  Trust 
Company  of  New  York  was  trustee  for  the  Louisville  and  Nashville 
Railway  Company  of  $5,501,000  of  common  stock  of  the  Nashville,  Chat- 
tanooga and  St.  Louis  Railroad.  The  same  report  showed  that  the  Cen- 
tral Trust  Company  of  New  York  held  $14,418,900  of  common  stock  of 
the  Chicago  and  Alton  Railroad ;  was  trustee  for  $19,995,000  of  cornrnon 
stock  of  the  Philadelphia  and  Reading  Railroad;  and  held  $70,212,500 
of  common  stock  of  the  Chicago,  Rock  Island  and  Pacific  Railroad,  and 
$380,000  of  common  stock  of  the  Toledo,  St.  Louis  and  Western  Rail- 
road. 

41  See  an  account  of  this  case  by  Henry  Wollman  in  the  New  York 
Times  Annual  Financial  Review,  for  1911,  p.  n. 


776  HISTORY  OF  THE   SUPREME   COURT 

questionably  paid  in  lieu  of  dividends,  and  the  failure  to  call  it 
dividends  was  probably  a  mere  device.  The  court  wisely  held 
that  this  large  amount  should  be  considered  as  part  of  the 
income  of  the  railroad  company.  On  the  other  hand,  the 
court  held  against  the  income  bondholders,  on  their  conten- 
tion that  the  directors  had  no  right  to  charge  against  income 
amounts  paid  for  equipment. 

"Judge  Lamar,  who  has  just  been  appointed  Justice  of  the 
United  States  Supreme  Court,  was  of  the  counsel  for  the 
railway  company "  [the  Central  of  Georgia  Railway  Com- 
pany]. 

Moody,  in  his  exhaustive  work  issued  in  1904,  placed  the 
Central  of  Georgia  Railway  System  in  the  group  of  railroads 
controlled  by  J.  Pierpont  Morgan.42  This  system  included 
1,877  miles  and  was  capitalized  at  $54,146,000.  In  turn  it 
was  controlled  by  the  Southern  Railway  Company  (con- 
trolled by  Morgan)  with  its  $365,755,265  capitalization. 
Special  Report  No.  I  of  the  Interstate  Commerce  Commission, 
March  10,  1908,  detailed  the  close  connection  between  the 
Southern  Railway  Company,  the  Louisville  and  Nashville 
Railroad  Company,  the  Central  of  Georgia  Railway  Com- 
pany, the  Atlantic  Coast  Line  and  many  other  railroads.43 

While  controlling  these  vast  railroad  systems,  Morgan,  at 
the  same  time,  controlled  or  dominated  some  of  the  most 
powerful  industrial  and  commercial  trusts.  The  great  Steel 
Trust  was  organized  by  him,  likewise  the  Shipping  Trust,  and 
h«  acquired  control  or  interest  in  many  other  trusts  of  vast  re- 
sources and  proportions. 

As  a  result  of  the  decision  of  the  Supreme  Court  of  Georgia, 
committees  representing  Central  of  Georgia  Railroad  bond- 
holders arranged,  in  December,  1910,  to  sell  the  bonds  de- 

<2"The  Truth  About  The  Trusts":  434-435-  In  the  year  1904  the 
total  capitalization  of  all  lines  embraced  in  the  Morgan  group  was  more 
than  two  and  a  half  billion  dollars.  Since  then  Morgan  has  extended 
his  control. 

43  "  Intercorporate  Relationship  of  Railways,"  pp.  40-41. 


UNDER   CHIEF  JUSTICE   WHITE  777 

posited  with  them  to  the  Illinois  Central  Railroad  which,  it  is 
said,  now  controls  the  road  through  stock  ownership. 

The  last  important  case  in  which  Judge  Lamar  appeared 
before  his  appointment  to  the  Supreme  Court  of  the  United 
States  was  as  the  principal  counsel  for  the  Atlantic  Coast 
Line  Railroad.  This  case  was  argued  before  the  Supreme 
Court  of  the  United  States  on  October  19  and  20,  igio.44 
It  was  an  action  on  the  part  of  the  Atlantic  Coast  Line  Rail- 
road, plaintiff  in  error,  to  attack  the  twentieth  section  of  the 
Hepburn  Interstate  Commerce  Act  on  the  plea  that  the  initial 
carrier  was  not  responsible  for  the  action  of  all  subsequent 
carriers  for  damages  to  freight.  One  of  the  assistants  of 
Attorney-General  Wickersham  in  arguing  for  the  Government 
was  John  Maquard  Harlan,  a  son  of  Justice  Harlan.  The 
Supreme  Court's  decision  given  out  on  January  3,  1911,  and 
written  by  Justice  Lurton,  upheld  the  Hepburn  Act  and  de- 
nied that  it  interfered  with  "  liberty  of  contract."  *5 

Parenthetically,  another  decision  of  the  Supreme  Court  of 
the  United  States  delivered  by  Justice  Lurton  later  in  the 
same  year  (Dec.  18,  1911)  may  be  here  referred  to.  This 
decision  affirmed  a  decision  of  the  Supreme  Court  of  Illinois 
to  the  effect  that  the  City  of  Chicago  was  liable  to  railroad 
companies  for  damages  suffered  by  firms  or  corporations  in 
the  great  railroad  strike  of  1894.  The  particular  sum  of 
damages  recovered  in  this  case  was  $425,500.  As  a  matter  of 
law  there  was  nothing  astonishing  in  this  decision;  it  simply 
reaffirmed  statutes  and  court  precedents  that  public  treasuries 
would  have  to  stand  indemnity  for  losses  caused  by  mobs 
and  riots.  But  in  point  of  fact  the  mischief  done  in  that 

44  Atlantic  Coast  Line  R'd  vs.  Riverside  Mills,  219  United  States  Re- 
ports :  186. 

45  In  announcing  Lamar's  appointment  to  the  Supreme  Court  of  the 
United  States,  a  special  Washington  news  dispatch  in  the  Atlanta  Jour- 
nal, December  13,  1910,  stated:     "  Practically  all  of  the  opinions  written 
by  Lamar  as  a  member  of  the  Georgia  Supreme  Court  were  examined 
by  the  President  and  the  Attorney-General,  and  they  were  impressed 
favorably." 


778  HISTORY  OF  THE   SUPREME   COURT 

strike  was  due  not  to  the  strikers,  but  (as  the  testimony  before 
the  special  commission  appointed  by  President  Cleveland 
showed)  to  United  States  deputy  marshals  and  deputy  sher- 
iffs many  of  whom  were  drunk  and  provoked  trouble  and  even 
committed  robberies.  The  commission  reported  that  no  vio- 
lence or  destruction  of  property  was  done  by  the  strikers  or 
their  sympathizers  at  Pullman,  and  that  no  disorder  could  be 
traced  to  them.  This  report  was  easily  available  as  a  public 
document,  but  the  decision  of  the  Supreme  Court  reveals  no 
familiarity  with  its  findings.  The  whole  burden  of  the  decision 
was  to  place  the  responsibility  upon  "  riots  and  mobs."  40 

"  Rule  of  Reason  "  Applied. 

Of  other  recent  decisions  of  the  Supreme  Court  of  the  United 
States  only  five  will  be  referred  to  here.  Those  in  the  Stand- 
ard Oil  Company  and  Tobacco  Trust  cases  will  be  considered 
first.  These  decisions  are  so  freshly  in  memory  and  of  such 
common  knowledge  that  but  the  briefest  description  will  be 
given  of  their  pertinent  points. 

The  Supreme  Court  decreed  that  both  trusts  should  undergo 
a  form  of  dissolution  but  the  reorganization,  so-called,  while 
nominally  splitting  these  trusts  into  a  number  of  apparently 
separate  components,  does  not  in  reality  efface  the  trusts. 
This  pseudo  dissolution  has  been  admitted  by  those  familiar 
with  methods  of  trust  operations  to  be  a  farcical  makeshift. 
Moreover,  by  putting  the  trusts  to  some  trouble  in  the  "  dis- 
solution "  process,  the  grounds  were  supplied  for  an  agitation 
in  favor  of  Federal  incorporation,  which  is  to  say,  legalizing 
of  trusts. 

But  the  important,  historic  thing  that  the  Supreme  Court  did 
in  making  these  decisions  was  to  introduce  an  entirely  new 
principle  into  law  —  a  principle  arbitrarily  promulgated  yet  in 
accordance  with  the  demands  of  industrial  evolution.  No 

48  City  of  Chicago,  Plaintiff  in  Error  vs.  Frank  Sturges. 


UNDER   CHIEF   JUSTICE   WHITE  779 

power  but  the  Supreme  Court  of  the  United  States  could  or 
would  have  ignored  the  plain  meaning  of  a  statute  of  Congress, 
and  construed  that  law  to  mean  something  far  different  than 
what  it  actually  said.  The  Sherman  Anti-Trust  Act  says  that 
every  combination  in  restraint  of  trade  is  illegal.  Nor  has 
that  law  ever  been  repealed.  But  by  a  stroke  of  the  pen  the 
Supreme  Court  of  the  United  States  boldly  and  arbitrarily 
amended  it  by  simply  holding  that  Congress  meant  to  say  that 
every  combination  in  undue  restraint  of  trade  was  illegal.  No 
longer,  therefore,  are  trusts  sweepingly  condemned  in  one  cate- 
gory; the  Court  "distinguished"  and  pointed  out  the  way  to 
the  gradual  legalization  of  trusts.  To  prove  a  trust  to  be  crim- 
inal it  was  now  .necessary  to  prove  that  it  was  an  "  undue  " 
or  "  unreasonable  "  trust.  This  was  the  now  famous  "  Rule 
of  Reason  "  pronounced  by  the  Supreme  Court. 

Justice  Harlan  who,  as  we  have  said,  was  a  reactionary 
regarding  almost  every  question  but  that  of  the  Negro  race, 
pointed  out  in  his  dissenting  opinion  that  this  construction 
amounted  to  an  amendment  of  the  law  rather  than  merely  an 
interpretation,  and  that  it  constituted  an  usurped  legislative 
act  on  the  part  of  the  Court.  He  did  not  understand  that 
economic  forces  govern  men's  actions,  and  that  the  dominant 
interests  of  a  time  will  infallibly  have  their  will  expressed 
in  law,  whether  legislative  law  or  court  law.  Illegality  of  pro- 
ceeding or  usurpation  of  power  never  troubles  the  dominant 
class  or  the  representatives  of  that  class.  They  who  have  the 
economic  might  command  all  other  kinds  of  might,  and  their 
demands  are  put  into  effect,  if  not  by  one  means,  then  by 
another. 

This  was  the  last  important  decision  in  which  Justice  Harlan 
participated.  He  died  on  October  14,  1911,  aged  seventy-eight 
years.  For  nearly  thirty-four  years  he  had  served  on  the 
Supreme  Court  of  the  United  States,  and  the  total  estate  that 
he  left  amounted  to  but  $13,000,  of  which  $7,200  was  in  life 
insurance. 


780  HISTORY   OF    THE    SUPREME    COURT 

Employers'  Liability  Act  Upheld. 

The  third  recent  decision  in  question  was  the  Supreme 
Court's  decision,  on  January  15,  1912,  holding  that  the  Federal 
Employers'  Liability  Act  passed  by  Congress  was  constitu- 
tional. This  law  provides  that  such  doctrines  as  the  "  fellow 
servant "  defense  used  by  corporations  shall  no  longer  apply 
to  cases  of  injuries  sustained  in  interstate  commerce.  The 
distinction,  however,  between  interstate  and  intrastate  com- 
merce is  of  the  most  vital  importance ;  to  avail  himself  of  the 
benefits  of  the  law,  the  injured  worker  will  have  to  prove  that 
he  was  not  engaged  in  intrastate  commerce,  which  is  to  say, 
commerce  within  the  boundaries  of  a  State.  And  what  new 
doctrine  will  be  advanced  by  corporation  attorneys  to  defeat 
the  workers  remains  to  be  seen ;  without  doubt  some  effective 
plea  will  be  invented  for  the  purpose. 

The  decision  of  the  Supreme  Court  validating  this  law  was 
written  by  Justice  Van  Devanter.  It  held  that  Congress  had 
full  power  to  enact  such  a  law,  and  that  Federal  statutes  on 
the  subject  were  superior  to  State  laws.  Recalling  that  the 
Supreme  Court  had  declared  a  similar  law,  passed  in  1906, 
unconstitutional,  the  skeptical  asserted  that  the  Supreme  Court, 
despite  its  professions  of  lofty  aloofness,  carefully  "  followed 
the  election  returns,"  and  was  not  unmindful  that  the  impor- 
tant Presidential  election  of  1912  was  in  sight.  Such  an  as- 
sumption would  imply  that  realizing  the  stern,  organized 
awakening  of  the  working  class,  the  policy  had  been  begun 
of  presenting  sops  in  order  to  prevent  that  movement  from 
developing  into  a  mighty  revolutionary  force. 

Perhaps  this  implication  is  not  incorrect.  But  prudence, 
bred  of  knowledge  and  experience,  demands  that  before  arriv- 
ing at  any  solid  judgment,  it  may  be  well  to  wait  and  see  what 
other  decisions  in  the  near  future  follow  this  precedent.  One 
of  the  precedents  cited  by  Justice  Van  Devanter  was  the  de- 
cision of  Chief  Justice  Marshall  in  the  case  of  McCulloch  vs. 


UNDER    CHIEF   JUSTICE    WHITE  781 

Maryland,  in  which  case  Marshall  sustained  the  constitution- 
ality of  the  chartering  by  Congress  of  the  Bank  of  the  United 
States.  Significantly,  the  great  capitalist  interests  have  been 
recently  agitating  for  two  laws  in  particular  —  one  law  legal- 
izing the  trusts,  and  another  law  chartering  a  Central  Bank; 
and  if  these  laws  are  passed,  as  they  doubtless  will  be  if  the 
magnates  remain  in  control,  the  Supreme  Court  will  be  called 
upon  to  pass  upon  their  constitutionality,  and  expected  to  give 
another  application  of  the  "  Rule  of  Reason." 

Initiative  and  Referendum  Valid. 

The  fourth  important  recent  decision  was  that  of  February 
19,  1912,  in  which  the  Supreme  Court  of  the  United  States 
decided,  in  the  case  of  the  initiative  and  referendum  law 
adopted  by  the  people  of  Oregon,  that  it  had  no  jurisdiction 
to  pass  upon  the  validity  of  that  law,  and  that  a  law  of  such 
a  purely  political  character  was  subject  solely  to  the  judgment 
of  Congress.  By  implication,  therefore,  the  law  was  pro- 
nounced constitutional.  The  question  of  the  validity  of  simi- 
lar laws  in  ten  other  States  depended  upon  this  decision. 

It  is  known  that  during  the  time  when  the  test  action  in 
this  case  was  under  consideration  by  the  Supreme  Court  of 
the  United  States,  the  members  of  that  court  were  individually 
swamped  with  a  deluge  of  letters  from  a  large  number  of 
people  throughout  the  country  demanding  that  the  initiative 
and  referendum  law  be  declared  valid.  Did  this  remarkable 
and  unprecedented  demonstration  of  popular  will  have  its  effect 
upon  the  Justices?  At  the  same  time,  the  agitation  for  the 
recall  of  judges  had  assumed  deep  national  proportions;  and 
when  Senator  La  Follette,  in  his  speech  during  this  time  at 
Carnegie  Hall,  asserted  that  he  even  favored  the  recall  of  the 
Justices  of  the  Supreme  Court  of  the  United  States,  he  was 
wildly  applauded.  Whatever  was  the  nature  of  the  delibera- 
tions of  the  Supreme  Court  that  led  to  this  decision,  the  sup- 


782  HISTORY   OF   THE    SUPREME    COURT 

porters  of  that  Court  immediately,  when  the  decision  was  an- 
nounced, used  that  decision  as  a  prime  argument  why  the  recall 
of  judges  should  not  be  adopted. 

But  shortly  after  the  foregoing  decision,  another  decision 
of  a  vastly  different  character  followed.  In  this  particular 
decision,  handed  down  on  March  n,  1912,  the  power  of  the 
trusts  was  greatly  enlarged  and  intrenched,  and  the  prohibition 
of  the  Sherman  Anti-Trust  Act  against  restraint  of  trade  was 
partially  nullified. 

By  a  majority  of  one  —  seven  Justices  participating  —  the 
Supreme  Court  of  the  United  States  held  that  a  patentee  could 
not  only  dictate  prices  for  the  patent,  but  also  the  conditions 
of  sale  and  use. 

Theoretically,  the  patent  system  was  devised  for  the  pro- 
tection of  the  individual  inventor;  as  a  matter  of  well-known 
fact,  however,  nearly  all  of  the  trusts  and  large  corporations 
appropriate  for  themselves  the  inventions  of  employes,  rarely, 
if  ever,  paying  their  salaried  workers  any  extra  remuneration 
for  the  inventions.  Patent  rights  form,  to  a  considerable  ex- 
tent, the  bases  of  many  of  the  industrial  trusts;  and  in  the 
recent  actions  of  the  Government  against  various  of  these 
trusts,  a  vital  point  of  the  prosecution  dealt  with  monopoly 
of  patent  rights.  These  actions,  it  is  worth  noting,  were 
under  way  at  the  very  time  that  the  Supreme  Court  thus  vir- 
tually decided  that  the  owner  of  a  patent  had  an  unrestricted 
monopoly  on  all  articles  used  in  its  operation,  and  could  fix 
its  price  and  prescribe  its  use. 

Justice  Lurton  delivered  this  extraordinarily  generous  and 
sweeping  decision ;  McKenna,  Holmes  and  Van  Devanter  con- 
curred. Chief  Justice  White  unsparingly  denounced  it,  Jus- 
tices Hughes  and  Lamar  joining  in  his  dissenting  opinion.  It 
was  a  decision  that  could  have  been  expected  from  Lurton; 
he  had,  in  1896,  when  a  Circuit  Court  judge,  given  a  similar 
decision  in  what  was  called  the  "  button  fastener  case,"  on 
which  occasion  Judge  Taft  (now  President)  and  Judge  Ham- 


UNDER    CHIEF   JUSTICE    WHITE  783 

mond,  comprising  the  judges  of  the  Sixth  Circuit,  had  con- 
curred with  him. 


»  Appointment  of  Chancellor  Pitney. 

Harlan's  successor,  nominated  by  President  Taft,  on  Feb- 
ruary 19,  1912,  was  Mahlon  Pitney,  Chancellor  of  the  Court 
of  Appeals  of  New  Jersey.  It  is  under  the  accommodating 
laws  of  New  Jersey  that  nearly  all  of  the  largest  industrial 
trusts  are  incorporated,  arid  as  Chancellor  of  the  Court  of  Ap- 
peals of  that  State  Pitney  had  every  opportunity  to  become 
thoroughly  familiar  with  the  legal  aspects  of  the  trust  question. 
The  Standard  Oil  Company,  the  Steel  Trust,  the  Tobacco 
Trust,  the  Sugar,  Beef,  Copper,  Whisky,  Machinery,  Tin  Can, 
Harvester,  Rubber,  Leather,  Cotton  Oil,  Cotton  Yarn,  Cotton 
Duck,  Felt  and  Smelter  Trusts  are  a  few  of  the  great  number 
of  trusts  incorporated  under  the  laws  of  New  Jersey.  Actions 
concerning  many  of  these  trusts  have,  from  time  to  time,  occu- 
pied the  courts  of  that  State. 

When  nominated  as  Associate  Justice  of  the  Supreme  Court 
of  the  United  States,  Mahlon  Pitney  was  fifty-four  years  old. 
His  father,  Henry  C.  Pitney,  had  been  a  Vice  Chancellor  of 
New  Jersey.  Admitted  to  the  bar  in  1882,  Mahlon  Pitney's 
first  notable  client  as  well  as  friend  was  George  Richards,  a 
very  rich  man  —  reckoned  a  millionaire,  in  fact — of  Dover, 
New  Jersey.  Later,  Pitney  lived  in  Morristown,  that  essen- 
tially plutocratic  town  which  has  the  reputation  of  having  at 
least  100  millionaires  as  residents ;  and  there  Pitney  was  situ- 
ated when  appointed  to  the  Supreme  Court.  Elected  to  Con- 
gress in  1895,  and  reflected,  he  resigned  in  1899,  having  been 
elected  to  the  New  Jersey  Senate  of  which  he  became  Presi- 
dent. He  became  a  judge  of  the  New  Jersey  State  Supreme 
Court,  in  1901,  and  in  1908  was  appointed  Chancellor  of  New 
Jersey. 

Upon  the  announcement  of  Taft's  selection  of  Pitney  for 


784  HISTORY   OF    THE    SUPREME    COURT 

the  Supreme  Court  of  the  United  States,  labor  organizations 
denounced  Pitney  for  decisions  in  which  peaceful  measures 
by  the  trade  unionists  in  their  struggle  for  better  conditions 
were  held  to  be  illegal,  but  Chancellor  Pitney  explained  that 
one  of  the  decisions  thus  criticised  had  been  delivered  orally 
by  his  father,  Vice  Chancellor  Henry  C.  Pitney,  in  1903.  In 
the  case  of  another  decision  rendered  recently  in  the  glass 
blowers'  strike,  declaring  it  to  be  unlawful  for  strikers  to  use 
peaceful  persuasion  and  picketing,  Chancellor  Mahlon  Pitney 
said  that  this  decision  had  been  written  by  Vice  Chancellor 
Bergen.  But  Pitney  admitted  that  he  had  affirmed  this  de- 
cision in  an  opinion  in  which  he  had  declared  persuasion  un- 
lawful and  actionable.  In  defense  of  his  action  he  went  back 
into  the  precedents  of  the  moldy  past,  when  law  was  expressly 
aimed  to  prevent  the  workers  from  organizing ;  he  cited  Black- 
stone's  commentaries,  several  cases  in  English  law,  and  some 
decisions  of  the  United  States  Courts. 

However,  there  could  be  no  mistaking  the  gratification  that 
his  nomination  aroused  among  the  great  capitalist  interests; 
the  pro-trust  newspapers  and  the  capitalist  press  in  general 
acclaimed  his  appointment,  and  he  received  congratulatory 
telegrams  from  judges,  United  States  Senators  and  other  ap- 
provers, all  known  for  their  devotion  to  the  existing  capitalist 
system,  and  for  their  exaltation  of  the  supereminence  of  large 
property  rights. 

When  Pitney's  nomination  came  before  the  United  States 
Senate,  that  body,  for  three  successive  days,  in  executive  ses- 
sion, discussed  his  record.  His  opponents  severely  attacked 
him  for  a  decision  enjoining  workers  from  doing  such  lawful 
and  innocent  acts  as  picketing  during  a  strike  and  from  per- 
suading other  workers  not  to  take  the  strikers'  places  in  the 
mills.  But  criticisms  that  he  was  inimical  to  the  workers  only 
the  more  heightened  Pitney's  prestige  and  strengthened  his 
cause  in  the  Senate  composed  as  it  largely  was,  and  is,  of 
multimillionaire  magnates  or  of  the  outright  retainers  and 


UNDER    CHIEF   JUSTICE    WHITE  785 

covert  servers  of  the  great  capitalist  interests ;  his  nomination 
was  confirmed,  on  March  13,  1912,  by  (it  was  learned)  a  vote 
of  fifty  to  twenty-six. 

Compared  to  the  splendor  of  the  residences  of  his  neighbors, 
Pitney's  house  in  Morristown  is  modest.  "  The  only  mark  of 
luxury  in  his  manner  of  living,"  says  an  account,  "  is  in  the  big 
black  automobile  sometimes  to  be  seen  standing  at  his  door. 
The  house  is  a  brown-shingled  little  place  that  hardly  exceeds 
the  size  of  a  large  bungalow,  standing  inconspicuously  among 
many  other  more  pretentious  residences  on  Collis  Avenue,  not 
far  from  the  enormous,  castle-like  Robert  H.  McCurdy  resi' 
clence." 


Trust  Magnates  Triumph. 

What  did  the  "Rule  of  Reason"  signify?  It  denoted  the 
final  triumph  of  the  few  but  all-powerful  trust  magnates  con- 
trolling the  resources  of  the  country,  and  the  submergence  of 
the  remaining  sections  of  the  industrial  middle  class.47  For 
decades  this  middle  class  had  fought  persistently  and  stub- 
bornly for  self-preservation.  It  deluded  itself  into  the  belief 
that  it  had  statute  law  on  its  side,  but  the  Supreme  Court  of 
the  United  States,  worthy  representative  of  the  dominant  capi- 
talist group  of  the  era,  disillusioned  it  by  decreeing  that  the 
very  statute  upon  which  the  middle  class  relied,  meant  some- 
thing very  different  from  what  was  supposed.  The  "  Rule  of 

47  The  utterances  of  some  of  the  magnates  were  significant. 

J.  Pierpont  Morgan :  "  I  consider  the  decision  concerning  Standard 
Oil  entirely  satisfactory ;  moreover,  I  expected  it.  .  .  ." 

Jacob  H.  Schiff:  "I  believe  that  the  general  effect  of  the  Supreme 
Court  decision  will  be  most  favorable  to  the  corporations  of  the  coun- 
try.  .  .  ." 

George  J.  Gould :"...!  am  for  the  Supreme  Court  every  time. 
For  more  than  a  hundred  years  it  has  been  at  work,  and  it  has  never 
made  a  mistake.  .  .  ." 

Frank  J.  Gould :     ".     .     .     It's  great !  " 

Henry  Clews:  ".  .  .  It  may  be  taken  for  granted,  therefore,  that 
hereafter  there  will  be  nothing  but  good  trusts  in  the  eyes  of  the  law." 


786  HISTORY   OF   THE   SUPREME    COURT 

Reason "  was  an  historic  utterance  —  far  more  historic  and 
significant  of  vast  changes  in  society  than  was  currently 
thought.  The  next  application  of  the  "  Rule  of  Reason " 
will  be  made  by  the  organized  working  class  in  its  own  interests 
to  the  end  that  it  will  expropriate  its  expropriators. 


THE   END 


INDEX 


Absentee  landlordism,  93-94,  98,  101-102,  117-127,  169,  172-173,  176^-186, 
247-252,  340-353,  376,  439,  etc.  See  also  under  specific  headings, 
railway  and  canal  land  grants,  railroad  appropriations  of  land,  and 
private  land  claims. 

Adair  case,  692,  729. 

Adams  Express  Co.,  448,  556,  663. 

Adams,  Henry,  cited,  142. 

Adams,  John,  126,  147,  201,  222,  223;  appoints  John  Marshall  Chief 
Justice,  227,  242. 

Adams,  John  Quincy,  177;  an  attorney  for  the  great  corrupt  Yazoo 
land  grant,  223,  242,  260-263,  293,  331,  333,  399. 

Adams,  Samuel,  78. 

Addyston  Pipe  and  Steel  Company  decision,  638. 

Aguilar,  Francisca,  332. 

Aguilar,  Francisco,  610. 

Aguilar,  Thomas  de,  323,  326,  333-336,  349,  352,  405-406. 

Alabama,  306;  seizures  of  Indian  lands  in,  343. 

Alabama  Midland  Railway  Co.,  637. 

Alabama  and  Tennessee  Railroad  Co.,  435. 

Albany  and  Susquehanna  Railroad,  500. 

Aldrich,  Charles  H.,  622. 

Aldrich,  George,  417. 

Alexander,  James  W.,  754. 

Alexander,  William  (Lord  Stirling),  105,  140. 

Alien  and  Sedition  Law,  222-223,  246. 

Allen,  George  I.,  623. 

Allen,  Col.  Samuel,  claims  New  Hampshire,  18-19. 

Alliance  Bank  (of  Canton,  O.),  652. 

Alliance  Gas  Company,  of  same,  652. 

Allison,  John,  Jr.,  719. 

Allison,  William  B.,  559,  709. 

Altgeld,  John  P.,  621. 

Alvarado,  Juan,  450,  467,  503. 

Alvarez,  Juan,  609. 

Amboy,  Lansing  and  Traverse  Bay  R'd,  592. 

American  Bell  Telephone  Co.  (see  also  Bell  Telephone  Co.),  575-576. 

American  Fur  Co.  (see  also  John  Jacob  Astor),  110-215. 

American  Federation  of  Labor,  688. 

American  Railway  Union,  620-621,  623,  643. 

American  Screw  Co.,  652. 

American  Sugar  Refining  Co.  (see  Sugar  Trust). 

787 


INDEX 

Amory,  W.  N.,  cited,  612,  741,  759-764,  758,  760-764. 

Amoskeag  Manufacturing  Co.,  658-659. 

Anderson,  Joseph,  cited,  390. 

Andrews,  John,  490. 

"  Antelope  "  case,  296-300,  398. 

Anti-Monopoly  League,  525-558. 

"Anti-Renters'  War,"  38,  150. 

Anti-Trust  League,  667-668. 

Appalachicola  Land  Co.,  340. 

Arago  case,  636-637. 

Archbold,  John  D.,  700,  737,  738. 

Arguello,  Maria  de,  463. 

Arizona,  land  frauds  in,  608-610. 

Arkansas,  land  frauds  in,  306,  329,  338,  375-390,  409,  435. 

Armijo,  Governor,  565. 

Armor  plate  frauds,  666-667. 

Armour,  Philip  D.,  583. 

Arnold,  D.  H.,  627. 

Arredondo  claims  to  enormous  areas  in  Florida,  326-327,  332. 

Arredondo,  F.  M.,  326,  332-333 ;  vast  claim  validated  by  Chief  Justice 
Marshall,  334-336;  case  cited  as  precedent,  419,  420,  451, 

Arredondo,  J.  M.,  land  claims,  326,  332-333. 

Ashland  and  Vermilion  Railroad,  510. 

Astor,  John  Jacob,  35 ;  gets  land  obtained  by  fraud,  40-42 ;  Aaron  Burr's 
connection  with,  41;  debauching  of  Indians,  no,  215,  2/4;  decision 
of  Supreme  Court  of  the  U.  S.  in  his  favor,  336-337,  341,  306. 

Asylum  Company,  194. 

Atchison,  Topeka  and  Santa  Fe  Railroad,  586. 

Atkins,  Edward  F.,  635. 

Atkinson,  Edward,  cited,  574. 

Atlantic  Coast  Line  (Railway),  776-778. 

Atlantic  and  St.  Lawrence  Railroad,  479. 

Atlas  Mining  Co.,  592. 

Austin,  Moses,  411. 

Austin,  Stephen  F.,  411,  413. 

Babcock,  Amos  C.,  579-582. 

Babcock,  Orville  E.,  515. 

Bailey,  James  M.,  596. 

Bailey,  Joseph  W.,  738. 

Baker,  George  F.,  613,  628,  683,  748. 

Baldwin,  Henry,  appointed  Associate  Justice  Supreme  Court  of  TJ.   S., 

331;  delivers  decision  in  Mitchell  case,  343-345;  358,  370,  309;  his 

death,  407-408. 

Baldwin  Locomotive  Works,  735. 
Balli,  Juan  J.,  423. 
Baltimore,  Lord,  362. 
Baltimore  Mexican  Co.,  362-363,  365. 
Baltimore  Improvement  Co.,  361. 

Baltimore  and  Ohio  Railroad  Co.,  269,  586,  595,  616,  625,  653,  657. 
Bandelet,  John,  158. 
Banks,  106,  114,  150,  153-157,  160-162,  167,  179,  191,  206,  214,  216-217, 


INDEX  789 

220-221,  223,  253,  266-269,  277,  288,  291,  293-294,  334,  356,  357,  360, 
371-372,  394-396,  413,  467,  479-480,  485-489,  490-492,  495,  497,  517, 
522,  531,  582,  583,  596,  628,  651-652,  701  (see  also  under  specific 
names  of  banks). 

Bank  of  Agriculture,  413. 

Bank  of  Albany  (N.  Y.),  214. 

Bank  of  America,  161,  206,  216-217. 

Bank  of  Circleville  (O.),  497. 

Bank  of  Columbia,  360. 

Bank  of  the  Commonwealth   (Ky.),  394. 

Bank  of  England,   150. 

Bank  of  the  Metropolis   (Wash.,  D.  C),  360. 

Bank  of  New  York,  161-162,  214. 

Bank  of  North  America,  153-157,  160,  162,  179,  191,  220,  223,  259. 

Bank  of  Pennsylvania,  220. 

Bank  of  Toledo  (O.),  531. 

Bank  of  the  United  States  (first  chartered  bank  of  the  name),  106,  114, 
214,  253;  (second  chartered  institution)  288,  293-294,  334,  356-357, 
361,  371-372,  393-394,  489-492,  562. 

Bank  of  Wooster  (O.),  497. 

Barbour,  Philip,  102. 

Barbour,  Thomas,  391-392. 

Barker,  Wharton,  669. 

Barnard,  Judge,  513. 

Bastrop  private  land  claim,  320-321,  373,  435-436. 

Baxter,  Ed.,  718-719. 

Baxter,  W.  M.,  718-719. 

Bayard,  Anna,  138. 

Bayard,  Nicholas,  origin  of  immense  estate,  32,  138. 

Bayard,  William,  38-39;  intimate  friend  of  John  Jay,  40;  further  de- 
tails of  origin  of  large  estate,  42-43;  116,  204,  206-207,  218,  287. 

Beale,  J.  C.,  412. 

Beall,  Thomas,  176. 

Beaubien,  Charles,  565-567. 

Beef  Trust,  671. 

Beekman,  Henry,  origin  of  vast  landed  estate,  33,  140. 

Bellomont,  Earl  of,  and  Captain-General,  charges  attempts  at  bribery, 
18-19;  exposes  how  vast  landed  estates  were  corruptly  secured, 
32-33;  seeks  to  have  them  confiscated,  34-35,  75,  138. 

Belmont,  August,  760. 

Bell  Telephone  Co.,  575-576. 

Benjamin,  Judah  P.,  320,  434-435- 

Benton,  Thomas,  293-294 ;  cited,  343,  403 ;  cited,  490-492. 

Benson,  Judge,  decisions,  39-40;  studied  law  under  Chancellor  Kent, 
40;  206,  213. 

Berkeley,  Lord  John,  25. 

Biddle,  Nicholas,  490. 

Bingham,  William,  154,  179,  180,  478. 

Birtch,  Mary,  case  of,  652-653. 

Black,  Judge  J.  C,  517,  522,  525. 

Black,  U.  S.  Attorney-General,  cited,  449-450,  456,  457,  461. 

Blacklisting,  declared  legal,  692-693,  729. 


790  INDEX 

Blair,  John,  appointed  Associate  Justice,  Supreme  Court  of  U.  S.,  147 ; 
resigned,  147.  Also,  205. 

Blake,  George,  184. 

Blake,  Luther,  cited,  379. 

Elaine,  James  G.,  514. 

Blatchford,  Richard,  562. 

Blatchford,  Samuel,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  564;  antecedents  and  career  previously,  562-565,  576. 

Bliss,  Cornelius  N.,  731. 

Bliss,  Ezra,  536. 

Boisdore  private  land  claim,  321,  436. 

Bolton,  James  R.,  456-457. 

Bolton  Screw  Co.,  652. 

Bonaparte,  Charles  J.,  622. 

Bond,  John  R.,  536. 

Boone,  Governor,  45-46. 

Borden,  John  P.,  416,  417,  418-419. 

Borego,  Jose  B.,  his  huge  Texas  land  claim,  423. 

Boston  and  Albany  Railroad,  658. 

Boston  Gaslight  Co.,  448. 

Boston,  Hartford  and  Erie  Railroad,  563. 

Boston  and  Maine  Railroad,  442,  448,  659,  718. 

Boston  Manufacturing  Co.,  442. 

Boston  and  Providence  Railroad,  442. 

Boston  Water  Power  Co.,  448. 

Bowie,  James,  417. 

Bowie,  John  J.,  338,  382-384. 

Boycott,  declared  illegal,  689,  692,  729. 

Boyd,  Gordon  D.,  389. 

Brahan,  John,  Gen.,  389. 

Bradbury,  James  Ware,  cited,  478-479. 

Bradford,  William,  124. 

Bradley,  Charles,  cited,  523-524. 

Bradley,  Joseph  P.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  517;  service  as  a  corporation  attorney,  518-524;  Union  Pa- 
cific Railroad  decision,  547;  551,  555,  569,  576;  succeeded  by  Justice 
Shiras,  594. 

Brady,  Anthony  N.,  748,  758-759,  762. 

Brewer,  David,  J.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  591 ;  previous  career,  591 ;  Military  Wagon  Roads  decision, 
602-603 ;  remarkable  doctrine  laid  down  by  him,  603 ;  605 ;  Des 
Moines  Navigation  and  Railway  decision,  605-607;  608;  decision 
in  Camou  case,  608-611;  decision  in  Debs  case,  624-625;  decision 
in  railroad  freight  rate  case,  637 ;  639,  666,  678,  683 ;  doctrine  of 
"transitory  risk,"  684;  succeeded  by  Justice  Hughes,  695,  739. 

Bribery  and  corruption,  18-24,  34-43,  75,  131,  148,  155-156,  i73-*74, 
186-190,  215-217,  233,  242,  255,  258,  259,  262-264,  269,  283,  293-294, 
326-333,  334,  340,  343,  372-390,  421,  425-426,  430,  439,  45<>,  454,  460, 
466,  490-492,  499-500,  502,  512^-513,  520,  525,  530,  537,  542,  545- 
546,  563,  564,  567-570,  572-574,  575-576,  587,  596,  599,  605-606,  612, 


INDEX  791 

627-628,  630-632,  681,  698,  712,  730-731,  746,  755,  76o,  763.  (See 
also,  Legislative  corruption,  and  Congress,  bribery  in.) 

Broderick,  David  C,  501-502. 

Brooke,  Roger,  359. 

Brooks,  Judge,  cited,  279. 

Brown,  Ethan  A.,  346. 

Brown,  Henry  B.,  appointed  Associate  Justice,  Supreme  Court  of  U. 
S.,  591 ;  his  previous  record  as  a  corporation  pleader,  592-594 ; 
dissents  in  income-tax  decision,  617;  625;  dissents  in  railroad 
freight  decision,  636;  delivers  decision  in  Arago  case,  637;  suc- 
ceeded by  Justice  Moody,  658.  Also,  684. 

Brown,  John  Bundy,  479. 

Brown,  Philip,  479. 

Browning,  Louisa,  362. 

Brush  Electric  Illuminating  Co.,  747. 

Bryan,  William  J.,  cited,  764-766,  772-773. 

Bryant,  William  Cullen,  354. 

Byrn,  Michael,  40. 

Buchanan,  Andrew,  361. 

Buchanan,  James,  President,  472-477,  504. 

Buchanan,  James  A.,  366-368. 

Buffalo,  Rochester  and  Pacific  Railway,  626. 

Burgess,  Samuel,  sea  pirate  captain,  34-35,  139. 

Burnett,  D.  G.,  411,  418. 

Burns,  David,  175. 

Burr,  Aaron,  41,  164-167,  186,  206,  215-216,  257. 

Burr,  Thaddeus,  163. 

Butler,  Charles,  531. 

Butler,  Marion,  647-648. 

Cabell,   Judge,   cited,  279. 

California,  great  land  frauds  in,  305,  407;  numerous  private  land  claims 
validated,  440,  448,  449,  467,  501,  525,  552-554,  570,  571.  (See  also, 
Railroad  land  grants.) 

California  and  Oregon  Land  Company,  600. 

Call,  E.  K.,  321,  326,  335;  cited,  345,  347^353- 

Callaway,  E.  H.,  775. 

Callender,  John  Thompson,  142-143,  246. 

Camden  and  Amboy  Railroad,  518,  520,  521,  523. 

Camden  and  Atlantic  Railroad,  520. 

Cameron,  John  L.,  411,  418. 

Campbell,  Justice,  dissents  in  Fremont  case,  451 ;  also  in  Larkin-Mis- 
roon  case,  464;  his  severe  dissenting  opinion  in  Dodge  vs.  Wool- 
sey,  467-469;  resigns,  480.  Also,  536. 

Canton  (O.)   Street  Railway  Co.,  651. 

Carlisle,  John  G.,  407,  614,  714. 

Cascade  Mountain  Wagon  Road  Co.,  6po. 

Cases,  comprising  principal  of  those  cited  or  described  (arranged  al- 
phabetically) :  Adair  vs.  U.  S.,  692 ;  Addyston  Pipe  and  Steel 
Company  case,  638 ;  Alexander  vs.  Morris,  105 ;  Alleghany  R'd  and 
Coal  Co.  vs.  Casey,  169;  Ames  vs.  Union  Pacific  Railway,  603;  "An- 
telope" case,  296-300;  Arago  case,  636-637;  Armstrong  vs.  Morrill, 


792  INDEX 

106;  Arredondo  case,  334-336;  Astor  case  (Carver  vs.  Jackson  ex 
dem.  Astor  et  a/.),  337;  Baltimore  and  Ohio  R'd  Co.  vs.  Marshall, 
269;  Bank  of  North  America  vs.  Fitzsimmons,  155;  Beverly  vs. 
Smith,  67;  Bonnet  (Lessee  of)  vs.  Devebaugh,  168;  Bradstreet 
vs.  Huntington,  107;  Brisco  vs.  Bank  of  the  Commonwealth,  394; 
Brown  vs.  Gilman,  258;  McCulloh  vs.  Maryland,  293.;  Camou  vs. 
U.  S.,  608-611;  Carver  vs.  Jackson  ex  dem.  Astor  et  al.,  337; 
Campbell  vs.  Galbreath,  168;  Cassell,  Admr.,  vs.  Charles  Carroll, 
277;  Cavazos  vs.  Trevino,  439;  Chandler  vs.  Calumet  and  Hecla 
Mining  Co.,  593;  Charles  River  Bridge  case,  396-397;  Civil  Rights 
cases,  677 ;  Chisholm  vs.  Georgia,  205 ;  Chicago  Water-Front  case, 
589  and  607;  Cincinnati  vs.  Lessee  of  White,  120;  Clark  (Lessee 
of)  vs.  Courtney,  101 ;  Clyatt  vs.' U.  S.,  678;  Clymer  vs.  Dawkins, 
98;  Coleman  vs.  Dick  and  Pat,  30,  57;  Commodities  Clause  cases, 
674-675 ;  Connolly  vs.  Union  Sewer  Pipe  Co.,  665 ;  Consolidated 
Gas  Company  case,  679-683 ;  Danbury  Hatters'  case,  689-692 ; 
Dartmouth  College  vs.  Woodward,  287-292;  Davidson  vs.  New 
Orleans,  677;  Dawson's  Lessee  vs.  Godfrey,  254;  Debs  case,  623- 
625;  Delk  case,  726-729;  Dodge  vs.  Woolsey,  467;  Dred  Scott  case, 
469-477 ;  Employers'  Liability  Act  case,  693 ;  and  subsequent  Act  and 
case,  780-781 ;  Faxon  vs.  U.  S.,  610 ;  Fernandez  et  al.  vs.  Peters, 
344;  Field  et  al.  vs.  Holland,  182;  Fitzsimmons  et  al.  vs.  Ogden, 
109;  Fletcher  vs.  Peck,  259-260,  262-264,  283;  Fremont  case,  450- 
452,  462;  Gay  vs.  U.  S.,  715-719;  Gilmore  vs.  North  American 
Land  Co.,  176,  178,  184,  191;  Gooding  slave  trade  case,  364-366; 
Greenleaf's  Lessee  vs.  Birth,  177 ;  Groves  vs.  Slaughter,  400-403 ; 
Hancock  vs.  Walsh,  424 ;  Harriman  vs.  Interstate  Commerce  Com- 
mission, 673;  Harvey  and  Wife  vs.  Borden,  98;  Hawkins'  et  al. 
vs.  Barney's  Lessee,  102;  Hepburn  vs.  Auld,  98;  Huidekoper's 
Lessee  vs.  Douglas,  249;  Hunter  vs.  Martin,  Fairfax's  Devisee, 
237,  240,  270-273,  278-281;  Income  Tax  case,  616-617;  Initiative 
and  Referendum  case,  781-782;  In  re  Lockwood,  677;  Insular 
cases,  648;  Joint  Traffic  Association  case,  638;  King  vs.  Mullins, 
185  ;  "  L'Amistad  "  case,  398-400 ;  League  vs.  Atchison,  438 ;  League 
vs.  De  Young,  427;  Legal  Tender  decision  (Hepburn  vs.  Gris- 
wold,  504^506;  reversed,  524;  Lewis  et  al.  vs.  Marshall  et  al., 
101,  392;  Lochner  vs.  N.  Y.,  675-676,  717;  Livingston  and  Gilchrist 
vs.  Maryland  Ins.  Co.,  273;  Ludlow  vs.  Carpenter,  120;  McCardle 
case,  508;  M'llvaine  vs.  Daniel  Coxe's  Lessee,  245-246;  McKinney 
vs.  Saviego,  439;  Marbury  vs.  Madison,  243-244;  Marshall  vs. 
Baltimore  and  Ohio  R'd,  512;  Military  Wagon  Roads  cases,  599- 
603;  Minnesota  and  North  Carolina  railroad  rate  cases,  672-673; 
Mitchell  case,  340-345;  Moyer  vs.  Nichols,  686-687;  Nebraska 
maximum  freight  rate  case,  637 ;  New  Jersey  vs.  Wilson,  283-284 ; 
New  York,  State  of,  vs.  George  Clarke,  38;  Non-resident  bond- 
holder tax  case,  525 ;  Northern  Pacific  Railway  vs.  Dixon,  684 ; 
Northern  Pacific  Railway  right  of  way  decision,  672-673 ;  North- 
ern Securities  Co.  vs.  U.  S.,  613,  668-670;  Oneale  vs.  Thornton, 
178;  Palmer  et  al.  vs.  U.  S.,  455;  Paschal  vs.  Perez,  420;  Patterson 
vs.  Gaines  and  wife,  447;  Pennsylvania  vs.  Tench  Coxe,  168,  170; 
Pettibone  vs.  Nichols,  686-687;  "Plattsburg"  case,  302-304;  Plessy 
vs,  Ferguson,  677-678;  Realty  Co.  vs.  U*  S.,  715-719;  Rose  vs^ 


INDEX  793 

Himely,  257;  Schulenberg  vs.  Harriman,  542-543,  578;  Sinking 
Fund  case,  550-551;  Smyth  vs.  Ames,  637;  Soulard's  Heirs  vs. 
U.  S.,  4Q4 ;  Spencer  vs.  Southwick,  167 ;  State  Tax  on  Railway 
Gross  Receipts  case,  525 ;  State  Tax  Freight  case,  524 ;  Steiner 
vs.  Newbold,  170;  Sugar  Trust  case  (U.  S.  vs.  E.  C.  Knight  Co.), 
634-635;  Sutter  case,  502-504;  Taylor  vs.  Brown,  101,  254-255; 
cited,  462;  Telephone  cases,  575-576;  Tobacco  Trust  case,  778- 
779;  Township  of  Pine  Grove  vs.  Talcott,  541;  Trust  cases,  671- 
672;  U.  S.  vs.  Cities  of  Philadelphia  and  New  Orleans,  436;  U.  S. 
vs.  Cruikshank,  677 ;  U.  S.  vs.  Garcia,  457 ;  U.  S.  vs.  Gomez,  462 ; 
U.  S.  vs.  Lifnantour,  459;  U.  S.  vs.  Rodman,  406;  U.  S.  vs. 
Peralta,  466;  U.  S.  vs.  Sutherland,  466;  U.  S.  vs.  Throckmorton, 
552-554;  U.  S.  vs.  Union  Pacific  R'd,  547;  Van  Ness  vs.  City  of 
Washington,  175,  193;  Van  Rennselaer  vs.  Kearney,  149;  Ware 
vs.  Hylton,  205 ;  "  Warren  "  case,  369-370 ;  Westfall  vs.  Singleton, 
26;  White  vs.  Jones,  24. 

Caldwell,  James,  165. 

Calumet  and  Hecla  Mining  Co.,  593-504. 

Cambria  Iron  Co.,  665-666. 

Cambuston,  Henry,  456. 

Canada  Southern  Railway,  540,  612. 

Canby,  Israel  T.,  389. 

Cardozp,  Judge,  513. 

Carnegie,  Andrew,  666-668,  756. 

Carnegie  Steel  Company,  665-666. 

Carnes,  Elizabeth,  183. 

Carnes,  J.  P.,  183. 

Carroll,  Charles,  126,  277,  360-362. 

Carroll,  Daniel,  109,  130,  175,  178. 

Carter,  James  C.,  743,  746. 

Carter,  Robert,  23,  27,  301. 

Carter,  Walter  S.,  739-741,  749,  751. 

Carteret,  Philip,  44. 

Cass,  Lewis,  341,  372-373,  376,  388,  462,  565. 

Cassatt,  A.  J.,  666. 

Castenada,  Juan,  553. 

Castillero  claim,  466. 

Castro,  Henri,  422-423,  424. 

Castro,  Manuel,  457-458. 

Caswell,  D.   A.,  489. 

Catron,  John,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
393,  402;  Gen.  Sam  Houston  reads  letter  concerning,  433-434;  436- 
437,  447,  45i,  467,  469;  in  Dred  Scott  case,  475-476;  his  death, 
514. 

Cavazos  land  grant,  420,  437. 

Central  of  Georgia  Railway  Co.,  775-776. 

Central  Military  Wagon  Road  Co.,  600.  , 

Central  Pacific  R'd,  502,  507,  543,  572-573,  625,  640-646. 

Central  Railroad  of  New  Jersey,  524,  624,  675. 

Central  Trust  Co.,  774-775. 

Chabolla,  Anastasio,  453. 

Chambers,  Thomas  J.,  411,  417. 


794  INDEX 

Chambliss,  P.  C,  378. 

Chandler,  Senator,  659. 

Chase,  Salmon  P.,  appointed  Chief  Justice,  Supreme  Court  of  U.  S., 
483 ;  his  prior  career,  associations  and  connections,  484 ;  as  a  bank 
attorney  and  director,  489-490,  492-493;  as  Secretary  of  the  Treas- 
ury, 493-496;  Legal  Tender  decision,  504-506;  decision  in  Mc- 
Cardle  case,  508-509;  517;  death  and  estate,  526;  criticism  of,  527; 
his  successor,  528,  529,  532. 

Chase,  Samuel,  117,  130,  143;  appointed  Associate  Justice,  Supreme 
Court  of  U.  S.,  150;  his  career  previously,  150-151;  impeachment 
proceedings  against,  246. 

Chatfield,  Levi  S.,  cited,  37-48. 

Chemical  Bank,  217,  396. 

Cheney,  B.  P.,  623. 

Chicago  and  Alton  R'd,  673-674,  775. 

Chesapeake  and  Ohio  R'd,  723. 

Chicago,  Burlington  and  Quincy  R'd,  578,  583-586,  625. 

Chicago  Dock  Co.,  578. 

Chicago  Gaslight  and  Coke  Co.,  588. 

Chicago,  Milwaukee  and  St.  Paul  R'd,  530,  629. 

Chicago  and  Northwestern  Railway,  578,  586. 

Chicago,  St.  Louis  and  New  Orleans  R'd,  597. 

Chicago,  Rock  Island  and  Pacific  R'd,  546,  586,  775. 

Chickasaw  Indians,  375-399,  etc. 

Child  Labor,  origin  of  in  American  factories,  79-82. 

Choate,  Joseph  H.,  615,  673,  717,  743,  746. 

Choteau,  August,  339-340. 

Church,  John  B.,  107-109,  115,  142,  165-167,  169-170. 

Church,  Philip,  108-109. 

Cincinnati,  Hamilton  and  Dayton  R'd,  538,  556,  611-614. 

Cincinnati,  New  Orleans  and  Texas  Pacific  R'd,  636,  637. 

Cincinnati,  Richmond  and  Chicago  R'd,  538. 

Cincinnati  Traction  Co.,  737. 

Citizens'  Alliance,  686. 

City  National  Bank  of  Canton  (O.),  651. 

Civil  War,  93,  301,  451-452,  480,  489,  495,  496,  513,  515. 

Clark,  Clarence  D.,  767,  771-772. 

Clark,  Walter,  617. 

Clarke,  George,  36-38,  107. 

Clarke,  George  J.  R,  321-322,  326,  335. 

Classes,  contrast  of,  in  Colonial  times,  65-68. 

Cleveland,  Grover,  571,  574,  578,  597,  611-614,  619-621,  627,  709,  710, 
723,  740,  745,  778. 

Cleveland  and  Mahoning  R'd  Co.,  532. 

Cleveland,  Painesville  and  Ashtabula  R'd,  537. 

Cleveland  and  Pittsburg  R'd,  493. 

Cleveland  Terminal  and  Valley  Co.,  653. 

Cleveland  and  Toledo  R'd,  531,  537. 

Clifford,  Fanny,  479. 

Clifford,  Nathan,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
477-478;  his  connections,  479;  individuality,  480;  concurs  in  Legal 
Tender  decision,  504;  507,  524-525;  succeeded  by  Justice  Gray,  561. 


INDEX  795 

Clifford,  W.  H.,  479. 

Clinton,  De  Witt,  no,  215-216,  251. 

Clinton,  George,  no,  164-165. 

Clymer,  George,  78,  98,  153,  220. 

Coal  lands ;  original  appropriation  of,  in  Pennsylvania,  169,  194-195 ;  in 
Wyoming,  768. 

Coal  Trust,  674-675. 

Coburn,  Abner,  479. 

Coburn,  Philander,  479. 

Colden,  Cadwallader,  37,  43-44. 

Colorado,  great  land  frauds  in,  305^-449;  vast  Maxwell  land  claim 
partially  in,  565-567;  tax  levy  of  State  pronounced  unconstitutional, 
673. 

Colorado  and  Red  River  Land  Co.,  412. 

Colorado  and  Southern  R'd,  629. 

Colton,  David  D.,  572-573. 

Columbia  National  Bank   (of  Pittsburg),  596. 

Commercial  Bank  of  Bristol,  R.  I.,  583. 

Commercial  Bank  of  Cincinnati,  492. 

Commercial  Bank  of  Toledo,  531. 

Commercial  Cable  Co.,  735. 

Conewago  Canal  Co.,   180. 

Congress,  bribery  in,  173-174,  334,  45O,  466,  490,  496-497,  5°2,  513,  530, 
542,  545-546,  557,  563,  572-574,  575-576,  599,  641. 

Confiscated  estates  (during  the  American  Revolution),  90;  evasion  of 
confiscatory  laws,  94;  203-206,  207-208,  222,  232-236,  239-240,  245- 
247,  270,  273,  278-280,  336-337,  362. 

Conkling,  Roscoe,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
but  declines,  562. 

Connecticut,  land  frauds  in,  Colonial  times,  15-18;  Colonial  laws  con- 
cerning working  class,  51;  property  qualification  for  voters,  87; 
Legislature  gives  a  large  land  grant,  163. 

Connecticut  Mutual  Life  Insurance  Co.,  592. 

Connolly  vs.  Union  Sewer  Pipe  Co.,  case  of,  665. 

Connotton  Valley  R'd,  651. 

Continental  Congress,  119,  220. 

Constitutional  Convention,  Federal  of  the  year  1787,  94,  101 ;  economic 
interests  of  many  of  its  members  detailed,  101-129;  held  in  secrecy, 
129;  147-150;  origin  of  a  famous  clause,  155-157;  191,  195,  218,  223. 

Constitution  of  the  United  States,  its  drafting  and  interpretations  and 
questions  regarding,  85,  91,  96,  155-157,  160,  190-191,  206,  215,  218, 
223,  231,  242,  243-244,  253,  259,  260,  262,  266,  279-281 ;  Dartmouth 
College  case,  287-292;  357,  361,  394,  399-4O3,  469-477,  5O5,  508, 
5-M,  525,  536,  614-617,  672-673,  674-679,  680-683,  685,  692,  7M-7I7. 

Consolidated  Gas  Co.  (of  N.  Y.),  629,  679-683.  747,  748. 

Consolidated  Telegraph  and  Electrical  Subway  Co.,  745-746. 

Consumers'  League,  676. 

Cooper,  Peter,  494, 

Corbin,  A.  R.,  515. 

Corning,  Erastus,  563. 

Correction,  houses  of,  established,  59-62,  90-91. 

Corry,  William,  36-38. 


INDEX 

Cosby,  William,  35. 

Coudert,  Frederick  R.,  746. 

Cowperthwaite,  Joseph,  490. 

Cox,  Zachariah,  181-183. 

Coxe,  Daniel,  245. 

Coxe,  Tench,  167,  169,  179. 

Cranch,  William,  177,  260. 

Crane,  Murray,  658-659. 

Crane,  Zenas,  659. 

Cravath,  Paul  D.,  739,  740,  741,  745,  746,  756,  761. 

Credit  Mobilier  Co.,  513,  545-548. 

Creek  Indians,  341,  343,  375-379,  etc. 

Crimes,  barbarous  colonial  punishments  for,  62-64. 

Crocker,  Charles,  502,  564. 

Crosby,  Stephen,  428. 

Crowninshield,  George,  267. 

Crowninshield,  John,  267. 

Cruger,  Nicholas,  40,  116,  206-207,  214. 

Culpeper,  Lord,  John,  25. 

Culpeper,  Lord  Thomas,  25-26. 

Curtis,  Benjamin  R.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  440;  his  previous  career  and  corporations  he  represented, 
441-443;  446;  resignation  and  lucrative  practice,  448,  477;  corpora- 
tion attorney,  563. 

Curtis,  George,  409. 

Gushing,  Caleb,  426,  430-432,  529-530,  539. 

Gushing,  William,  133 ;  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  145;  prior  career,  145-146.  Also,  205. 

Cutler,  Manasseh,  122-123. 

Dakotas,  North  and  South,  306. 

Dallas,  A.  J.,  177-180. 

Dallas  Military  Wagon   Road   Co.,  599. 

Danbury  Hatters'  case,  689-692. 

Danforth,  Jonathan,  42. 

Daniel,  Peter  V.,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

406-407,  438,  447,  451,  463,  464-465,  467- 
Dartmouth  College  case,  283,  286-293,  535. 
Davis,  Cushman  K.,  613. 
Davis,  David,  appointed  Associate  Justice,   Supreme   Court  of  U.   S., 

497-499 ;  dissents  in  Legal  Tender  case,  505 ;  524,  525,  541 ;  resigns, 

554.    Also,  560. 
Davis,  Henry  G.,  567. 
Davis,  George,  334. 
Davis,  Wiley,  377. 
Day,  Luther,  650. 
Day,  William  R.,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

650;  previous  career,  650-657;  678,  683,  684,  694. 
Day,  William  R.,  Jr.,  650. 
Dayton,  Jonathan,  119-127,  130,  163,  173-174, 
Dayton  and  Michigan  Railroad,  538. 
Debs,  Eugene  V.,  618-625,  634-635,  665,  669,  71 5- 


INDEX  797 

Debtors,  imprisonment  of,  64-65,  151. 

Decisions   (see  Cases  Cited). 

Declaration  of  Independence,  83,  87,  88,  94,  150. 

Delassus  private  land  claim,  339,  405. 

Delius,  Godfrey,  33,  34. 

Delk,  case  of  E.  M.,  described,  726-729. 

Delaware  County  Bank,  497. 

Delaware  and  Hudson  R'd,  675. 

Delaware,  Lackawanna  and  Western  R'd,  628-675. 

Delaware  and  Raritan  Canal  Co.,  521-522. 

Delaware  and  Schuylkill  Navigation  Co.,  180. 

De  Leon,  Francisco,  419. 

De  Leon,   Martin,  411,  419. 

Denman,  Matthias,  120-121. 

Denver  Pacific  R'd  Co.,  548. 

Denver  and  Rio  Grande  Railway  Co.,  566,  629. 

Depew,  Chauncey  M.,  756. 

Des  Moines  Navigation  and  R'd  Co.,  513,  605-607. 

Detroit  Citizens'  Street  Railway  Co.,  593. 

Dey,  Anthony,  409. 

Dickinson,  John,   130. 

Dickinson,  Walter,  130. 

Dinwiddie,  Governor,  24,  28-29,  117. 

Dixon,   Chauncey  A.,  684. 

Dongan,  Governor,  33. 

Dorchester  Insurance  Co.,  648. 

Dorsey,  Thomas,  150-151. 

Douglas,  Stephen  A.,  474,  477,  523,  583. 

Dred  Scott  case,  402,  437,  440;  described  in  detail,  469-477,  480,  504. 

Duane,  William  J.,  371. 

Du  Bois,  W.  E.  B.,  cited,  677. 

Duer,  William,  122-123. 

Dunmore,  Lord,  172. 

Dutch  West  India  Co.,  31. 

Duvall,  Gabriel,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

277 ;  292,  362. 

East  India  Co.,  76,  78. 

East  Tennessee,  Virginia  and  Georgia  R'd,  718-719. 

Eastern  Oregon  Land  Co.,  600. 

Eastern  R'd  Co.,  448,  612,  648. 

Eaton,  Sherburne  Blake,  739. 

Eckford,  Henry,  333. 

Edgar,  John,  313-315- 

Edison  Electric  Light  Co.,  739,  747- 

Edmunds,  George  F.,  560;  appointed  Associate  Justice,  Supreme  Court 

of  U.  S.,  but  declines,  562. 

Electric  Light  and  Power  Co.   (of  Canton,  O.),  652. 
Elkin,  John  P.,  700. 
Elkins  Act,  672. 
Elkins,  John  T.,  566. 
Elkins,  Stephen  B.,  566-567,  612,  672. 


798  INDEX 

Elkins,  William  L.,  759. 

Ellis,  John  B.,  cited,  527. 

Ellis,  Thomas  G.,  377. 

Ellsworth,  Oliver,  126,  130,  216;  appointed  Chief  Justice,  Supreme 
Court  of  U.  S.  to  succeed  Jay,  219-220;  his  previous  career,  221. 

Emancipation  Proclamation,  484.  ' 

Employers'  Liability  Act  of  1906  declared  unconstitutional,  693;  subse- 
quent Act  upheld,  780,  781. 

Entail  and  primogeniture,  abolished,  95. 

Equitable  Life  Assurance  Society,  564,  733,  754-757,  762. 

Erdman  (Interstate  Commerce  Act),  692. 

Erie  Railway,  479,  513. 

Essex  Bank,  268. 

Etting,  Solomon,  361-362. 

European  and  North  American  R'd,  511. 

Evans,  Capt.  John  R.  N.,  32. 

Evarts,  William  N.,  546. 

Ewing,    Nathaniel,    158. 

Ewing,  Thomas,  606. 

Ewing,  William  L.  E.,  389. 

Factories,  conditions  in,  78-82,  301,  444-446,  618-620,  659,  676,  717,  721- 
722. 

Fair,  James  G.,  569. 

Fairfax,  Denny,  233-235,  239-240,  254,  255,  270,  273,  278-281,  336,  362. 

Fairfax,  Lord  Thomas  (also  Fairfax  estate),  24;  grants  300,000  acres 
to  himself,  26  and  230;  Thomas  Marshall,  superintendent  of  his 
estate,  229-230,  and  John  Marshall,  attorney  for  Fairfax  estate,  231 ; 
estate  confiscated,  232;  State  grants  it  to  David  Hunter,  234;  con- 
test for  it,  234-235,  237-239,  242,  245,  254,  255,  270-273,  278-281; 
336,  362.  (See  also  for  outcome,  case  of  Hunter  vs.  Martin.) 

Farmers'  Alliance,  544. 

Farmers'  Bank  (of  Canton,  O.),  651. 

Farmers'  Bank   (of  Reading,  Pa.),  517. 

Farmers'  Deposit  National  Bank  (of  Pittsburg),  596. 

Farmers'  Loan  and  Trust  Co.,  600,  615. 

Farwell,  Charles  B.,  579-582. 

Farwell,  John  V.,  579-582. 

Farwell,  Walter,  581. 

Fay,  Samuel  P.  P.,  260. 

Federalist  Party,  142,  147,  161,  202,  209;  out  of  power,  224-227;  244,  286, 
409. 

Feudal  conditions,  in  Virginia,  24-26,  232;  in  New  York,  31-33,  34, 
43-44,  51-52,  140-150. 

Field,  Cyrus  W.,  500. 

Field,  David  Dudley,  499-500,  543,  639. 

Field,  Marshall,  586-588,  625. 

Field,  Stephen  J.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  497;  antecedents  and  career  previously,  499-502;  did  not 
sit  in  Sutter  case,  502-504;  concurs  in  first  Legal  Tender  decision, 
504-506,  507,  514,  524-525;  holds  taxation  of  non-resident  bond- 
holders unconstitutional,  525;  delivers  decision  in  Schulenberg  vs. 


INDEX  799 

Harriman,  543;  551,  559;  protects  Leland  Stanford,  567-570;  viru- 
lent attack  by,  570-571;  576,  583;  decision  in  Chicago  water-front 
case,  589 ;  his  old  enemy,  Judge  Terry,  shot  and  killed,  590-591 ; 
603,  605;  singular  action  in  Central  Pacific  R'd  case,  608;  Income 
Tax  case,  617;  625,  639;  death  and  will,  639-640.  Also,  642,  643. 

Fields,  Andrew  C,  631. 

Fillmore,  Millard,  440,  442. 

First  National  Bank  of  Chicago,  583. 

First  National  Bank  (of  N.  Y.),  628. 

First  National  Bank  of  Portland  (Me.),  480. 

First  National  Bank  of  Springfield  (111.),  583. 

Fischer's  and  Miller's  huge  Texas  land  grant,  422-423. 

Fish,  Stuyvesant,  628-629. 

Fisheries,  New  England,  in  Colonial  times,  71. 

Fisk,  Harvey,  and  Son,  756. 

Fisk,  James,  Jr.,  500,  515-516,  543,  548-549. 

Fitch,  John,  212. 

Fitchburg  R'd,  448,  659. 

Fitzsimmons,  Thomas,  115,  117,  153,  155,  163,  220. 

Fleming,  Judge,  cited,  279-280. 

Fletcher,  Governor,  his  corruption,  32-35,  106,  108,  140. 

Fletcher  vs.  Peck,  case  of,  259-260,  262-264,  283,  290,  291,  328. 

Florida,  immense  land  frauds  in,  304-306,  321-328,  332-336,  340-344, 
345,  34&-3S3,  405-406,  409,  434~435,  437,  449- 

Floyd,  Davis,  322,  324-325. 

Foraker,  Joseph  B.,  700,  736-738. 

Forbes,  John,  341,  342. 

Forrest,  Uriah,  178. 

Foster,  J.  Warren,  704. 

Foster,  J.   W.,   593. 

Fourteenth  Amendment,  status  of  Negroes  under,  676-679;  large 
property  rights  under,  679-683. 

Framingham  and  Lowell  R'd,  612. 

Franklin  Bank  of  Cincinnati,  492. 

Frelinghausen,  Frederick  T.,  523-524. 

Fremont  case,  450-452,  458. 

Fremont  and  Elkhorn  R'd,  578. 

Fremont,  John  C.,  450-452. 

French  Revolution,  influence  in  America,  200-202,  222,  225,  625. 

Fries,  John,  246. 

Frontier  Land  and  Cattle  Co.,  769. 

Fuller,  Melville  W.,  appointed  Chief  Justice,  Supreme  Court  of  U.  S., 
578;  sponsors  and  backers,  578-579;  previous  career,  582-589; 
as  a  railroad  and  general  corporation  attorney,  582-589;  598;  mili- 
tary wagon-roads  decision,  602-603 ;  declares  income  tax  unconsti- 
tutional, 617;  625;  decision  in  Justice  Gray's  favor,  626;  655,  656- 
684,  etc. ;  death  and  estate,  694.  Also,  695,  702. 

Fulton,  Robert,  212-215,  217,  295. 

Gadsden  Purchase,  609. 

Gage,  S.  T.,  568. 

Gallatin,  Albert,  106,  124,  126,  158,  307,  309-311,  313. 


8OO  INDEX 

Galveston  Bay  and  Texas  Land  Co.,  412,  417-418. 

Galveston  City  Co.,  421,  438. 

Galveston  R'd  Co.,  448. 

Gandara,  Manuel,  610. 

Gantt,  John  M.,  176. 

Garcia,  Rafael,  457; 

Garfield,  James  A.,  560. 

Garrard,  Sarah  Bella,  330. 

Garrard,  William,  389. 

Garesche,  V.  M.,  cited,  382-385,  387,  389. 

Gates,  John  W.,  756. 

General  Paper  Co.  (Paper  Trust),  672. 

General  Managers'  Association,  620-621. 

Georgia  Company,  182-184,  186-191,  264. 

Georgia  Mississippi  Co.,  182-184,  186-191,  258-259,  264. 

Georgia,  land  seizures  in,  during  colonial  times,  45-46;  entail  and 
primogeniture  abolished  in,  95 ;  great  land  grants  in,  102 ;  legis- 
lature of,  bribed  to  give  a  vast  land  grant  of  about  35.000.000  acres, 
I55~I56  and  181-184;  bribery  of  Legislature,  186-187;  rescinds  Yazoo 
grants,  187-190;  Marshall  declares  rescinding  act  unconstitutional, 
262-264;  283;  wresting  of  Indian  lands  in,  343,  357. 

Gerry,  Elbridge,  78,  85,  130,  147,  242. 

Gerry,  Elbridge  T.,  628. 

Gibbs,  Addison  C,  601. 

Gibson,  John,  99. 

Gilchrist,  Malcolm,  377. 

Gilman,  Nicholas,  121,  126 

Girard,  Stephen,  172,  320,  436. 

Goelet,  Robert  R.,  320,  436. 

Goelet  family,  396. 

Gooding,  John,  362-365,  370. 

Gonzales,  Juan  Jose,  461. 

Gompers,  Samuel,  cited,  691. 

Gomez,  Vincente,  461-462. 

Gordon,  Lord  A.,  39. 

Gorges,  Sir  Fernando,  son  and  grandson,  19. 

Gorham,  Nathaniel,  his  enormous  land  purchase,  85-86;  109,  111-115, 
130,  147. 

Goudy,  W.  C.,  578. 

Gould,  Edwin,  756. 

Gould  interests,  control  by,  629. 

Gould,  Jay,  441,  500,  513,  515-516,  53O,  538-539,  543,  545,  548-551,  556, 
557,  559,  573,  5Qi,  712,  745,  768. 

Graham,  George,  124,  328,  329,  334,  381. 

Grant  colony  in  Texas,  418-419. 

Grant,  Hugh  J.,  743. 

Grant,  U.  S.,  President,  514,  515-517,  529-53O,  539-54O,  593- 

Grand  Junction  R'd  and  Depot  Co.,  448. 

Grand  Trunk  Railway,  479. 

Grannis,  Richard,  632. 

Grange  movement,  544. 

Gray,  Horace,  appointed  Associate  Justice,  Supreme  Court  of.U.  S., 


INDEX  8O I 

561 ;  previous  career  and  anecdotes,  561-562 ;  625 ;  case  affecting 

interests  of,  625-626;  639;  death,  648. 
Gray,  William,  268,  625,  626. 
Great  Northern  R'd,  613,  620,  668-^670,  730. 
Greeley,  Horace,  499. 
Greenbriar  Company,  The,  27-30. 
Greenback  Party,  494. 

Greenleaf,  James,  176-178,  181-185,  191,  193,  259-260. 
Gregory,   Stephen   S.,  694. 
Grenville,  Lord,  208. 
Gresham,  Judge,  591. 
Grier,  Robert,  appointed  Associate  Justice,  Supreme   Court  of  U.   S., 

409;  437,  439,  447,  475-476,  480;  his  resignation  demanded,  504-505; 

resigns,  505,  514. 
Grimes,  Hiram,  453. 
Gfiswold,  Burr,  563. 
Griswold,  George,  340,  409,  412. 
Grosscup,  Benjamin  F.,  622,  646. 
Grosscup,  Peter  S.,  Judge,  622-623. 
Groves  vs.  Slaughter,  case  of,  400-403. 
Guarantee  Trust  Co.,  of  New  York,  622. 
Gunn,  James,  126,  183,  187. 
Gwin,  William,  377,  561. 

Hager,  John  D.,  519. 

Hale,  William  G.,  426,  429,  438. 

Hamilton,  Alexander,  41,  106-108,  114-117;  his  connections  and  eco- 
nomic interests,  130-131,  142,  149;  bank  interests,  160-162,  163; 
land  speculations,  166-167;  186,  201,  206,  207,  216,  221,  222,  225; 
influence  upon  John  Marshall,  231. 

Hamilton,  Alexander  (not  the  preceding),  322-324. 

Hamilton,  John  C,  161. 

Hampton,  Wade,  183. 

Hancock,  John,  77-78,  147. 

Hancock,  Thomas,  77. 

Hanna,  Joshua,  493. 

Hardeman,  W.  P.,  581. 

Harding,  W.  G.  597. 

Hardy,  Sallie  E.  Marshall,  272. 

Harlan,  James,  390-554. 

Harlan,  John  M.,  548;  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  554;  previous  career,  554-555;  576;  dissents  from  Income-Tax 
decision,  617;  dissents  in  railroad  case,  636;  delivers  Nebraska 
maximum  freight  rate  decision,  637;  638;  decision  as  to  Leland 
Stanford  estate,  642;  647-648.  657;  Connolly  vs.  Union  Sewer  Pipe 
Company  decision,  665 ;  666,  673,  676,  678,  683,  684,  766,  777 ;  pro- 
tests against  "  Rule  of  Reason  "  decision  in  trust  cases,  779 ;  death, 

779- 

Harlan,  John  Marquard  (son  of  preceding),  777. 
Harlem  Gaslight  Co.  (of  N.  Y.),  680. 
Harlem  Lighting  Co.,  746. 
Harper,  Robert  Goodloe,  201,  260. 


802  INDEX 

Harriman.  E.  H.,  643,  646;  his  colossal  frauds,  673-674,  683,  729;  fur- 
ther details  of  his  vast  frauds,  730-731 ;  733,  755,  757. 

Harris,  Isham  G.,  576. 

Harris,  W.  P.,  389. 

Harrison,  Benjamin,  597,  598. 

Harrison,  William  Henry,  99,  315. 

Havemeyer,  H.  O.,  635,  656,  711-712. 

Haven,  George  G.,  628,  630. 

Hayes,  Rutherford  B.,  554-555,  560. 

Haywood,  William  D.,  685-687,  692. 

Hazard,  Rowland  G.,  735. 

Hazlerigg,  John  T.,  case  of,  723-724. 

Hearst,  William  R.,  700. 

Henderson,  Richard,  97. 

Hendricks,  William,  390. 

Heney,  Francis  J.,  731. 

Hennessy,  James  M.,  case  of,  723-724. 

Hepburn  vs.  Griswold,  case  of,    (see  Legal  Tender  cases). 

Herrin,  W.  F.,  644,  645,  731. 

Hewes,  Joseph,  78. 

Hewitson  and  Powers  (or  vice  versa)  land  grant  in  Texas,  411,  426,  439. 

Hill,  David  B.,  627,  709,  713,  745. 

Hill,  Frederick  Trevor,  cited,  470-471. 

Hill,  James  J.,  613,  629,  668-670. 

Hill,  Sarah  Althea  (Mrs.  Terry),  590. 

Hite,  Joist,  23-24,  233-235. 

Hoar,  George  F.,  506. 

Hoboken  Land  and  Improvement  Co.,  519-520. 

Hoffman,  Judge,  452-456,  460,  568. 

Holland  Company,  114-116,  165-171,  192-193;  its  frauds  and  seizures 
yalidated  by  Supreme  Court  of  U.  S.,  247-252,  329,  335. 

Hollins,  H.  B.,  and  Co.,  623,  756. 

Hollins,  John,  366. 

Holmes,  Oliver  Wendell,  appointed  Associate  Justice,  Supreme  Court 
of  \J.  S.,  648;  previous  career,  648-650;  659;  protests  against  North- 
ern Securities  decision,  669-670;  673,  676,  683,  684,  694. 

Hood,  Joseph  L.,  418. 

Hook,  William  C,  773. 

Hoops,  Adam,  192. 

Hopkins,  Mark,  502. 

Hopkins,   Stephen,  78. 

Hopton,  Lord,  25-26. 

Hornblower,  William  B.,  626-627,  709,  739-740. 

Houston,  Sam,  424-425,  426-434,  439,  529. 

Howard,  George  H.,  457,  458,  552-553- 

Howard,  J.  H.,  cited,  379. 

Hoyt,   Henry  H.,  595. 

Hoyt,  Jesse,  583. 

Hubbard,  Rollin  B.,  536-537. 

Hudson  Iron  Co.,  448. 

Hughes,  Charles  E.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  695,  739;  antecedents  and  previous  career,  739-766. 


INDEX  803 

Hughes,  Robert,  429,  438. 

Hunt,   Ward,   appointed   Associate   Justice,    Supreme   Court  of  U.   S., 

525 ;  succeeded  by  Justice  Blatchford,  562. 
Hunter,  David,  234,  270-273. 

Hunter  vs.  Martin,  Fairfax's  Devisee,  case  of,  237,  240,  270-273,  278-281. 
Huntington,  Collis  P.,  441,  502,  507,  551,  557,  558,  568;  great  corruption 

by,  5/2-573 ;  640,  645. 
Huston,  Judge,  cited,  168-169,  248. 
Hyde,  James  Hazen,  733,  755,  762. 

Idaho,  306. 

Income  Tax,  614-615,  645. 

Income  Tax  decision,  616-617. 

Illinois,  extensive  land  frauds  in,  314-316. 

Illinois  Central  R'd,  513,  514,  564,  565,  578,  589,  607,  674,  777. 

Illinois  and  Wabash  Land  Co.,  171-175. 

Indiana  Banking  Co.,_578. 

Indians,  slaves  in  colo'nial  Virginia,  30,  56-57,  67 ;  trade  and  land  frauds 

upon,  70,  97,  106,  109-113,  138,   142,  172  179,  249-250;  debauching 

and  swindling  of,  215,  250,  308,  319-320,  34^-342,  344,  375~388. 
Industrial  Congress,  of  U.  S.,  445. 
Inglis,   Samuel,  154. 
Insurance  scandals,  630-633. 
Interstate  Commerce  Commission,  620,  636,  637,  641,  655,  659,  673,  674, 

684,  730,  768,  776. 

Iowa,  306;  great  land  seizures  by  railroads  under  color  of  law,  605-607. 
Iredell,  James,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

147;    previous    career,    147-149;    exchanges    circuits    with    Wilson, 

195 ;  204. 
Iselin,  Adrian,  Jr.,  628,  630. 

Jackson,  Andrew,  266,  269,  341,  357-358,  359,  371-372,  379,  383-385,  392- 
393,  407,  490. 

Jackson,  Howell  E.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  597;  prior  career,  597-598;  615-616;  dissents  from  Income 
Tax  decision,  617;  succeeded  by  Justice  Peckham,  626. 

Jackson,  John  P.,  518. 

Jay,  Augustus,  138. 

Jay,  Benjamin,  184. 

Jay,  John,  his  friends  Le  Roy  and  Bayard,  40,  106;  connections  of  Jay 

with  Alexander  Hamilton  and  Robert  Morris,  108;   112,  117,   119, 

130-131 ;  becomes  Chief  Justice,  Supreme  Court  of  U.  S.,  137;  his 

land-owning  ancestry  and  connections  of  wealth  and  power,   138- 

142;  represented  the  large  landed  class,  143-144;  151,  162,  195;  goes 

to  England  as  special  envoy,  197,  and  some  of  the  reasons,   198- 

208,  also  205 ;  his  Treaty,  206-209,  210-211,  235-236,  241,  254,  271-273  ; 

,  elected  Governor  of  New   York,  212 ;   formally  resigns  as   Chief 

Justice,  197-212,  218;  his  acts  as  Governor,  212-213,  216;  246,  296, 

•529. 

Jay,  Peter,  138. 

Jefferson,  Thomas,  h>  "  Memoirs,"  cited,  66 ;  91 ;  his  "  Notes  "  cited, 


804  INDEX 

94;  95,  99;  cited,  171-172;  199,  202,  224,  227;  cited,  237;  243;  cited, 

255-2561  312. 

Jerome,  William  Travers,  758-762. 
Jimeno,  Manuel,  464, 
Johnson,  Alba  J.,  735. 
Johnson,  Andrew,  514. 
Johnson,  Joseph,  252,  293. 
Johnson,  Ovid  F.,  426. 
Johnson,  Thomas,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

149- 
Johnson,  William,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

252;    dissenting   opinion    in    Fletcher   vs.    Peck   case,   262,    and    in 

Hunter  vs.  Martin,  272 ;  293,  358. 
Johnson,  Sir  William,  39,  42-43. 
Johnston,  J.  S.,  318-319. 
Joint  Traffic  Association,  638,  699. 
Joline,  Adrian,  763. 
Jones,  J.  R.,  313. 
Judges,  as  stock  or  bondholders,  155,  292,  266-268,  532,  593,  622-023. 

Kalamazoo  and  South  Haven  R'd,  548-551. 

Kansas,  306. 

Kansas  Pacific  R'd,  548-551. 

Kean,  John,  524. 

Keene,  James  J.,  729. 

Kelly,  William  Preston,  cited,  572. 

Kelly,  T.  F.,  726,  728. 

Kennebec  Co.,  215. 

Kennebec  and  Portland  R'd,  479. 

Kentucky,  entail  and  primogeniture  abolished  in,  95 ;  land  frauds  in, 

97;  land  grants  in,  101-102. 
Kent,  Chancellor,  40,  95,  291,  295. 
Key,  Anne,  360. 
Key,  Francis  Scott,  360. 
Kidd,  Captain  William,  sea  pirate,  34. 
Knickerbocker  Gaslight  Co.  (of  N.  Y.),  680. 
Knickerbocker  Trust  Co.,  622. 
Knox,  General  Henry,  132. 

Knox,  Philander  C,  650,  658,  666-668,  669,  773-774- 
Knoxville  and  Ohio  R'd,  556. 
Kuhn,  Loeb,  and  Co.,  741,  756. 

Labor  Reform  Party,  499. 

Lacombe,  E.  Henry,  699-700,  763-764. 

La  Crosse  and  Milwaukee  R'd,  512,  542. 

Lafayette  Bank  of  Cincinnati,  492,  497. 

Laflore,  Greenwood,  378. 

La  Follette,  Robert  M.,  cited,  701,  708. 

Lahr  case,  719-721. 

L'Hommedieu,  S.  S.,  538. 

Lake,  J.  S.,  426. 

Lake  Superior  Ship  Canal,  R'd  and  Iron  Co.,  592-593- 


INDEX  805 

Lamar,  Joseph  R.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  774-776;  previous  career,  774-776;  dissents  from  patents  de- 
cision, 782. 

Lamar,  Lucius  Q.  C.,  544,  577;  appointed  Associate  Justice,  Supreme 
Court  of  U.  S.,  571;  career  previously,  571-572;  railroad  stock- 
holder and  promoter  of  railroad  measures,  572-574,  576;  succeeded 
by  Justice  Jackson,  597-774. 

Lament,  Daniel  S.,  613. 

Land  frauds,  15-46,  97-128,  138,  163-195,  221,  222-223,  247-252,  258-265, 
283,  288,  304-317,  318-329,  331,  334,  337-353,  372-35O,  403-406,  409- 
439,  449-467,  478,  495,  525-526,  552-554,  557,  565-567,  572-573,  579- 
582,  592-593,  599-604,  608-610.  (See  also  specific  States,  Cases 
Cited,  and  other  parts  of  the  index.) 

Langdon,  John,  78. 

Lanier,  Charles,  628,  630. 

Lapsley,  John  W.,  429-430,  435,  438,  611. 

Larkin-Misroon  land  claims,  464. 

Larkin,  Thomas  O.,  453. 

Lathrop,  Gardiner,  732. 

Laurens,  Henry,  78. 

La  Vega  land  grant  (in  Texas),  430,  438. 

La  Vega,  Thomas  de  La,  430. 

Lawrence,  Abbot,  442. 

Lawrence,  James,  448. 

Lawrence,  Stone  and  Company,  425. 

Laws  declared  unconstitutional,  160,  223,  243-244,  467-468,  470-471,  505, 
524,  536,  615-617,  633,  665,  675-678,  693. 

League,  H.  H.,  413. 

League,  Thomas  M.,  421,  425,  429,  439. 

Lebanon  Valley  R'd,  517-518. 

Ledyard,  Lewis  Cass,  565,  573. 

Lee,  Gen.  .Henry,  169. 

Leftwich,  Robert,  411. 

Legal  Tender  Act,  486-487,  496,  504-505,  514. 

Legal  Tender  decision,  505-506;  railroad  interests  contest  it,  509-510, 
517,  and  decision  reversed,  523. 

Legislative  corruption,  155-156,  167,  215-217,  255,  258,  294,  340,  490- 
492,  497,  499,  502,  512,  513,  520,  525,  530,  537-538,  542,  564,  567- 
570,  587,  606,  612,  630-631,  641,  659,  681,  755,  760,  763. 

Leggett,  William,  cited,  354. 

Lehigh  and  Hudson  R'd,  629. 

Lehigh  Valley  R'd,  675. 

Leiter,   Levi   Z.,   586. 

Le  Roy,  Herman,  38-39;  intimate  friend  of  John  Jay,  40;  origin  of 
large  estate,  42-43;  115,  116,  206-207,  218-287. 

Lauterbach,  Edward,  746. 

Lewis,  Francis,  78. 

Lewis,  Nicholas,  27. 

Lewisohn,  Adolph,  756. 

Limantour,  Jose,  Y.,  455 ;  frauds  described  in  detail,  458-460, 

Lincoln,  Abraham,  474,  476,  477,  483,  497,  498-499,  5°2. 

Lincoln  Robert  T.,  578-579,  587. 


806  INDEX 

Linton,  Benjamin  F.,  384-385. 

Livingston,  Brockholst,  appointed  Associate  Justice,  Supreme  Court  of 

U.  S.,  253;  case  affecting  his  personal  interests,  273-277,  291,  296. 
Livingston,  Edward,  41,  320,  373,  436. 
Livingston,  John,  109-113. 
Livingston,  Peter  Van  Brugh,  140. 
Livingston,  Philip,  78,  149,  150. 

Livingston,  Robert,  origin  of  large  e?tate  and  fortune,  33-34;  106. 
Livingston,  Robert  R.   (son  of  preceding),  140.  ; 

Livingston,  Robert  R.,  Chancellor,  125;  Jay's  law  partner,  140-141,  198, 

210-212;  his  steamboat  monopoly,  212-217,  295-296,  397. 
Livingston,  William,  106,  130,  139,  150,  253. 
Lodge,  Henry  Cabot,  19;  cited,  288;  658-660,  711-713,  767. 
Longstrcet,  William,  183-186. 
Longworth,  Nicholas,  121. 
Loring,  John  F.,  264. 
Lorrillard,  Jacob,  396. 

Louisville  and  Nashville  R'd,  556,  565,  718-722,  729,  733,  738,  775,  776. 
Louisiana,  306;  great  land  frauds  in,  309-320,  331,  381-390,  435-436. 
Louisiana  Lottery  Co.,  703-708. 
Louisiana  Purchase,  283,  304 ;  vast  fraudulent  land  operations,  306,  etc. ; 

forging  and  antedating,  309-317,  etc.,  333~334,  449- 
Loyal  Co.,  The,  27-30,  57,  171,  329,  391. 
Luco,  Jose  L.,  456. 
Luco,  Juan  M.,  456. 
Ludlow,  Daniel,  120. 
Ludlow,  Israel,  121,  330. 
Lurton,    Horace    H.,   appointed   Associate   Justice,    Supreme   Court   of 

U.  S.,  656,  695;  his  previous  career  and  record,  718-719;  decisions 

as  an   inferior  judge,  719-731;   criticisms   of,   731-732;   in  contest 

for  control  of  New  York  Life  Insurance  Company,  732-736;  737- 

738,  777-778;  decision  in  patents  case,  782-783. 
Lynch,  William  A.,  651. 

McAllister,  Hall,  466. 

McAllister,  Matthew,  183. 

McCardle  case,  508-509. 

McCardle,  William  H.,  508-509. 

McCarren,  "  Pat,"  682. 

McCarthy,  Justin,  cited,  198. 

McClellan,  George  B.,  682. 

McComb,  Alexander,   165. 

McCormick,  Cyrus,  545. 

McCoy,  Robert,  23-24,  223-224, 

McCullogh,  Eustace,   148. 

McCullogh,  Henry,   148. 

McCullogh  vs.  State  of  Maryland,  case  of,  293,  780. 

McCunn,  Judge  John  H.,  impeached,  627,  632. 

McCurdy,  Richard  A.,  632. 

McKenna,  Joseph,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
640;  previous  career  and  record,  640-643;  sundry  protests  against 
his  appointment,  643-646;  647-648,  665,  683,  684;  dissents  in  Moyer- 


INDEX  807 

Hay  wood- Pettibone  kidnapping  case,  687;  concurs  in  patents  case, 
782. 

JVlrKinley,  John,  appointed  to  Supreme  Court  of  U.  S.,  393;  402,  437. 

McKinley,  William,  640,  643,  656,  667-668,  772,  773. 

McLane,  John,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
330-331;  358,  394;  opinion  in  slavery  case  (Groves  vs.  Slaughter), 
402-403 ;  437,  438,  447. 

McLane,  Louis,  269,  512. 

McLane,  William,  330. 

McNamara,  James  B.,  687-688. 

McNamara,  John  J.,  687-688. 

McNish,  John,  341. 

McPherson,  Smith,  732. 

Macfarlane,  Wallace,  cited,  699-700. 

Mackay,  Clarence  H.,  737. 

Macy,  William  H.,  545. 

Madison,  James,  99;  cited,  218;  243,  277.- 

Mad  River  and  Lake  Erie  R'd,  498. 

Mahoning  National  Bank  of  Youngstown  (O.),  652. 

Magee,  Christopher,  596. 

Maine,  claimed  by  Sir  Fernando  Gorges,  19;  vast  land  seizures  in,  265; 
alienation  of  its  public  lands,  478-479;  land  grants  to  railroads,  511. 

Maine  Central  R'd,  479. 

Maine  Steamship  Co.,  480. 

Maison  Rouge  claims  rejected,  437. 

Manhattan  Co.,  Bank,  214-216. 

Manhattan  Electric  Light  Co.,  746. 

Manhattan  Gaslight  Co.   (of  N.  Y.),  680. 

Manhattan  Railway  Co.  (of  N.  Y.),  500. 

Manufacturing,  native,  origin  and  development  of,  69,  70,  75-76,  78-82, 
217,  301. 

Manufacturers'  National  Bank  (of  Chicago),  583. 

Marbury  vs.  Madison,  case  of,  243-244,  284. 

Marbury,  William,  243. 

Marietta  and  Georgia  Railway  Co.,  774, 

Marine  Insurance  Co.,  361. 

Marquette  and  Ontonagan  R'd,  592. 

Marshall,  Alexander  J.,  269,  512. 

Marshall,  Benjamin,  340. 

Marshall,  Humphrey,  101,  391-392. 

Marshall,  James  Markham,  235,  271-273. 

Marshall,  John,  101,  169,  178,  214,  217,  224;  appointed  Chief  Justice, 
Supreme  Court  of  U.  S.,  227 ;  previous  career,  228-231 ;  in  the 
Virginia  Legislature,  231;  attorney  for  the  Fairfax  estate,  231-234; 
advances  doctrine  of  acquiescence,  233-234;  defends  Jay's  Treaty, 
236;  he  and  brother  buy  Denny  Fairfax's  claim  to  confiscated 
Fairfax  estate,  238-239;  his  dominating  personality,  241-242;  de- 
cision in  Marbury  vs.  Madison,  243-244;  validates  Holland  Co.'s 
frauds,  250-251;  decision  in  M'llvaine  vs.  Coxe's  Lessee,  253-254; 
legalizes  land  seizures,  254-255;  juridical  dictatorship,  256-257,  261, 
265-266;  declares  Georgia  rescinding  act  in  great  Yazoo  grant  of 
35,000,000  acres  unconstitutional,  202;  case  involving  Fairfax  estate 


808  INDEX 

decided  favorably  to  Marshall  and  brother,  270-273;  as  a  slave- 
holder and  landed  estate  owner,  272  and  301 ;  decides  a  case  in 
favor  of  Associate  Justice  Brockholst  Livingston,  277 ;  High  Vir- 
ginia Court  of  Appeals  refuses  obedience  to  Fairfax  decision,  279- 
280;  Story  reaffirms  decision,  281;  Dartmouth  College  decision, 
286-293 ;  legalizes  slave  traffic,  296-300 ;  validates  the  huge  Arre- 
dondo  claim,  334-336,  and  other  land  claims,  339-340;  also  validates 
immense  Mitchell  land  claim,  340-344;  his  death,  353-354.  Also, 
355,  357,  362,  391,  393,  397,  400,  403,  4<>5,  421,  422,  462,  529,  535,  600, 
607,  780. 

Marshall,  Thomas  (father  of  John),  229-230. 

Martin,  Edward,  600. 

Martin,  George  W.,  376-377. 

Martin,  Luther,  cited,  95,  129. 

Martin,  Thomas  Bryant,  26,  230,  233,  234,  271. 

Maryland,  estates  in  colonial  times,  22;  colonial  laws  on  the  working 
class,  54-56;  property  qualifications  for  voters,  86-87. 

Maryland  Insurance  Co.,  273,  275. 

Mason,  Capt.  John,  18-19. 

Mason,  Gen.  John  T.,  409,  412,  413,  414,  417. 

Massachusetts,  Puritan  laws  on  land  frauds,  15,  31 ;  early  laws  dealing 
with  servants  and  laborers,  48-50;  establishment  of  workhouses,  60; 
barbarous  punishment  for  crimes,  62-64;  convention  of  deputies, 
79;  convention  of  1780,  185;  property  qualifications  for  voters,  85, 
87,  261,  290-291;  convention  of  1788,  132,  147;  "insurrection"  in, 
146;  bank  charters  in,  267,  269;  convention  of  1820,  261,  290,  291. 

Massillon  Valley  Coal  Co.,  652. 

Matteson,  Orasmus  B.,  513. 

Matthews,  Stanley,  544;  appointed  Associate  Justice,  Supreme  Court 
of  U.  S.,  556 ;  opposition  to,  556 ;  as  a  railroad  attorney,  556-557 ; 
promoter  of  Texas  Pacific  railway  measures,  557;  denounced  as  a 
railroad  tool,  557-559;  severe  contest  over  appointment,  559-560; 
confirmed,  560;  565,  571-574,  576. 

Maxwell  Land  Grant  Co.,  566. 

Maxwell,  L.  B.,  565-567. 

Maxwell  private  land  claim  of  nearly  2,000,000  acres  validated,  565-567. 

Mellen,  Charles  S.,  753. 

Mechanics'  Bank    (of  N.  Y.),  396. 

Menard,  Michael  B.,  421,  425,  430. 

Mercantile  Bank,  161,  627. 

Mercantile  Trust  Co.,  754. 

Mercer,  Charles  Fenton,  422-424. 

Merchants'  Bank  (of  N.  Y.),  216,  221,  396. 

Merchants'  Bank  of  Salem,  267-269,  291. 

Merchants'  Loan  and  Trust  Co.,  694. 

Merchants'  National  Bank  of  Chicago,  583. 

Meredith,  Elizabeth,  153. 

Meredith,  Reese,  153. 

Meredith,  Samuel,  153-154. 

Mesilla  Valley,  449,  608-610. 

Metropolitan  Gaslight  Co.   (of  N.  Y.),  680.  . 

Metropolitan  National  Bank  (o'f  Chicago),  583. 


INDEX  809 

Metropolitan  Securities  Co.  (of  N.  Y.),  759,  762. 

Metropolitan  Street  Railway  Co.  (of  N.  Y.),  612,  683,  758,  764. 

Metropolitan  Telephone  Co.  (of  N.  Y.),  745-747. 

Mexican  Cession,  406,  413-414,  449. 

Mexican  War,  449,  462. 

Micheltorena,  Acting  Governor,  450,  459,  464,  466,  552-554. 

Michigan  Central  R'd,  560-593. 

Michigan,  private  land  grants  in,  308. 

Michigan  State  Insurance  Co.,  592. 

Mifflin,  Thomas,  117,  179-180.. 

Milam,  Benjamin  R.,  411. 

Milburn,  John  G.,  735. 

Military  Wagon-Roads  land  grants,  599-603. 

Miller,  Samuel  F.,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

424,  497-499 ;  dissents  in  Legal  Tender  case,  505 ;  525,  541 ;  Union 

Pacific  R'd  decision,  546-547;  decision  in  Throckmorton  case,  553- 

554;  570-571,  576. 
Milliken,  Seth  M.,  735. 
Mills,  D.  O.,  564. 

Milwaukee  and  Minnesota  R'd,  530. 
Mines,  "  accidents  "  in,  654-655. 
Mine  Owners'  Association,  686. 

Minnesota,  306;  rate  laws  pronounced  unconstitutional,  672-673. 
Minnesota  and  Northwestern  Railway,  563. 
Miranda,  Guadalupe,  565-567. 

Miranda,  Pedro,' his  enormous  land  claim  in  Florida,  326,  333. 
Mississippi,  306,  668;  forging  and  antedating  of  land  claims  in,  309-310; 

private  land  claim  frauds,  331 ;  extensive  appropriation  of  valuable 

Indian  lands,  375-390,  409. 
Mississippi  Central  R'd,  597. 
Missouri,  great  land  frauds  in,  306,  329,  331-332,  338-340,  345-347,  403- 

406,  435- 

Missouri  Compromise  Act  declared  unconstitutional,  470-471. 
Mitchell,  Colin,  340. 
Mitchell  land  claim  of  1,200,000  acres  in  Florida,  288,  321 ;  validated, 

340-345,  347-353 ;  case  cited  as  precedent,  419,  420. 
Mitchell,  Robert,  340. 
Moody,  John,  cited,  594,  701,  733,  736. 
Moody,   William  H.,  appointed   Associate  Justice,    Supreme   Court   of 

U.  S.,  658;  prior  career,  658-659;  660;  as  Attorney-Gen'l  of  U.  S., 

cited,  671 ;  683,  727 ;  resigns  and  is  pensioned,  767. 
Mooney,  William,  83. 
Moorcraft  Ranch  Co.,  769. 
Moore,  John  Bassett,  cited,  475. 
Moore,  Sir  Henry,  38-40,  42. 
Moore,  William  H.,  756. 

Monongahela  National  Bank   (of  Pittsburg),  596. 
Monroe,  James,  237,  330,  331. 
Morgan,  Benjamin  R.,  169. 
Morgan,  Christopher,  563. 
Morgan,   David  L.,  654. 
Morgan,  John,  42. 


8lO  INDEX 

Morgan,  J.  Pierpont,  407-408,  452,  565,  613 ;  bond  scandal  of  1895,  614 ; 
great  power  of  over  railroads,  629;  667,  668-669;  vast  wealth  and 
P9wer  of,  701,  733;  contest  for  control  of  large  insurance  compa- 
nies, 733-736,  73»,  749-753,  756-757,  765,  776,  785- 

Morgan,  John  T.,  611. 

Morrill,  Lot  M.,  479. 

Morris  Canal  and  Banking  Co.,  522. 

Morris  County  Bank,  522. 

Morris  and  Essex  R'd,  520,  523. 

Morris,  Gouverneur,  104,  117,  131;  his  cpnnection  with  Bank  of  North 
America,  153-157;  cheats  Robert  Morris  in  land  transaction,  192- 
193;  198,  220,  292. 

Morris,  Lewis,  35-36,  104. 

Morris,  Mary,  337. 

Morris,  Robert,  78,  101 ;  his  enormous  land  transactions  and  land  owner- 
ship, also  his  career  and  connections,  104-106,  108-109;  holdings 
of  6,000,000  acres  of  land,  108;  114,  117,  119,  126,  130-131,  140,  142, 
153,  161-163,  165-166,  169;  he  and  associates  get  9,000  lots  in 
Washington,  D.  C,  175-179;  180,  184-185;  insolvent  and  jailed, 
191-192.  Also,  220,  235,  248. 

Morris,  Roger,  336-337. 

Morrison,  William,  313-315. 

Morton,  Joseph,  264. 

Morton,  Sir  William,  25. 

Morton,  Levi  P.,  545-756. 

Moyer,  Charles  H.,  685^687,  692. 

Muhl,  Veronica,  case  of,  533-535. 

Municipal  Gaslight  Co.  (of  N.  Y.),  680. 

Muse,  George,  08. 

Mussina,  Jacob,  429,  438. 

Mutual  Benefit  Insurance  Co.,  522. 

Mutual  Life  Insurance  Co.,  628-629;  enormous  corruption  by,  630-634; 
683,  759,  762. 

Nagle,  David,  590-591. 

Nashville,  Chattanooga  and  St.  Louis  R'd,  775. 

Nashville  Company,  411,  412. 

Nebraska,  306. 

Negroes,  recent  decisions  vs.,  676-679  (see  also  Slavery). 

Nelson,  Samuel,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

409;  447,  456;   decision  in   Dred   Scott  case,  460-476;   concurs   in 

Legal  Tender  decision,  504-505;  507,  524,  525. 
Nevada,  449. 

Newark  Lime  and  Cement  Co.,  522. 
Newberry,  J.  S.,  592. 

New  Brunswick  Steamboat  and  Canal  Co.,  518. 
New  England  Mississippi  Co.,  258,  265. 
New  England  Trust  Co.,  651. 
New  England  Workingmen's  Association,  444. 
New  England  Workingmen's  Convention,  446. 
New  Hampshire,  its  appropriation  by  the  Plymouth  Company,  18-19; 


INDEX  8l  I 

establishment  of  houses  of  correction,  60,  90-91 ;  property  quali- 
fications for  voters,  87-88. 
New  Jersey,  large  feudal  estates  in,  31-32;  Lords  Proprietors  of,  44; 

139-140,  149;  property  qualifications  for  voters,  87. 
New  Jersey  Mutual  Life  Insurance  Co.,  522. 
New  Jersey- R'd,  518. 

New  Jersey  Railroad  and  Transportation  Co.,  519-520,  521-522. 
New  Jersey  Zinc  Co.,  522. 

New  Mexico,  validation  of  great  Maxwell  land  claim  in,  565-567. 
New  Netherlands  (later  New  York),  31-32,  51. 
New  Orleans,  Jackson  and  Great  Northern  R'd,  435. 
New  York,  great  feudal  estates  established  in,  31-33;  feudal  conditions 

in,  43-44  and  51;  early  laws  on  the  working  class,  51-52;  property 

qualifications  for  voters,  87 ;  entail  and  primogeniture  abolished  in, 

95 ;  vast  fraudulent  land  sales  in,   164-167. 
New  York  Board  of  Trade  and  Transportation,  558. 
New  York  Central  and  Hudson  River  R'd,  500,  540,  562,  740,  749. 
New  York  Connecting  Railway,  752. 
New  York  Genesee  Land  Co.,  109-113. 
New  York  and  Harlem  R'd,  540,  749. 
New  York  Life  Insurance  Co.,  564,  733-736,  740,  755,  757. 
New  York,  New  Haven  and  Hartford  R'd,  620,  659,  718,  749,  750,  752, 

754- 

New  York,  New  Haven  and  Boston  R'd,  748-754. 
New  York,  Ontario  and  Western  R'd,  735. 
New  York  and  Port  Chester  R'd,  750-753. 
.New  York  Telephone  Co.,  745. 
Nicholson,  Joseph,  307. 
Nicholson,    John,    104,    167,    169,    176-179;    impeachment    proceedings 

against,    179;   he   resigns,    180;    his   vast  estate,    181    and   193-195; 

North  American  Land  Co.,  184-185 ;  191,  248. 
Nixon,  George  A.,  411,  417. 
Nixon,  John,   153. 
Nixon,  S.  Frederick,  682. 
Noe,  James,  453. 
Norfolk  and  Western  R'd,  724. 
Norton,  N.  L.,  581. 

North  American  Land  Co.,  106,  176,  178,  184-185,  191. 
North  American  Trust  and  Banking  Co.,  562. 
North  Carolina,  entail  and  primogeniture  abolished  in,  95;  railroad  rate 

laws  pronounced  unconstitutional,  672. 
Northern  Indiana  R'd,  331.. 
Northern  Pacific  R'd,  479,  557,  604,  605,  613,  622,  629,  638,  646,  668-670, 

684,  730. 

Northern    Securities   Co.,   613,  668-670,  674. 
Northern  Securities  Co.,  decision,  668-670,  674* 
Northwest  Territory,  100,  125. 
Northwestern  Railway,  540. 
Nourse,  Joseph,  126. 
Nunez,  Sebastian,  453, 

Odell,  B.  B.,  682,  731. 
Ogden,  Thomas  L.,  193. 


812 


INDEX 


Ogden,  Samuel,  114. 

Ohio,  the  huge  Symmes-Dayton  grant  in,  and  accompanying  frauds, 
119-128;  the  "Sufferers'"  donation  of  500,000  acres  in,  163-164; 
canal  grants  in,  330. 

Ohio   Company,  99,    122-124,    171. 

Ohio  Life  Insurance  and  Trust  Co.,  532. 

Ohio  Mutual  Life  Insurance  Co.,  497. 

Oliver, '  Ebenezer,  184. 

Olney,  Richard  P.,  612,  623-624. 

Ord,  Pacificus,  461-462. 

Oregon  Pacific  R'd,  600-603. 

Oregon,  306;  great  timber  land  frauds  and  operation  of  military  wagon- 
road  companies,  590-603. 

Oriental  Bank  (of  Boston),  442. 

Orr,  Alexander  E.,  735. 

Orton,  Jesse  F.,  cited,  683. 

Osgood,  Samuel,  154. 

Pacific  Mail  Steamship  Co.,  459,  466,  530,  546. 

Pacific  Railroad  of 'Missouri,  626. 

Pachecho,  Juan  Perez,  453. 

Page,  Mann,  23. 

Paine,  Augustus  G.,  735. 

Palmer,  Joseph  C,  455. 

Pan  Electric  Telephone  Co.,  575-576. 

Panton,  Leslie  and  Co.,  341-343. 

Paper  Trust  (General  Paper  Co.),  672. 

Parker,  William  C,  460. 

Parsons,  Frank,  cited,  621. 

Parsons,  John  E.,  627,  634-635. 

Paterson,  Stephen  Van  Rennselaer,  149. 

Paterson,  William,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

149;  his  career  and  powerful  connections,  149-150,  210,  253,  296. 
Patterson,  Robert,  121. 
Patroons,  The,  31-32,  47. 
Payne,  Henry  B.,  537,  612. 
Pease,  E.  M.,  Governor,  423,  427. 
Peck,  John,  184,  259. 

Peck,  Judge,  328,  338-339 ;  cited,  345-347 ;  403-405. 
Peckham,  Ruftis  W.  (Sr.),  627. 
Peckham,  Rufus  W.,  611  ;  his  previous  career  and  connections,  626-634; 

Joint  Traffic  Association  decision,  638;  Addyston  Pipe  and  Steel 

decision,  638;  railroad  rate  laws  pronounced  unconstitutional,  673; 

decision    also    declaring   unconstitutional    Chicago    tax    levy,    673 ; 

Smelter  Trust  decision,  673 ;  bakeshop  workers'  decision,  675-676 ; 

Consolidated  Gas  decision,  681-682 ;  684 ;  succeeded  by  Lurton,  695 ; 

709;  sugar  bounty  decision,  715,  736,  748. 
Peckham,  Wheeler  H.,  brother  of  preceding,  626,  627,  681-682,  745,  746, 

748. 

Pedrodena  claim,  466. 
Pelt,  William  F.,  749. 
Pendleton,  Edmund,  27-28,  57,  108,  391. 


INDEX  813 

Pendleton,  Nathaniel,  102,  186-187. 

Perm,  Thomas  and  Richard,  get  £130,000  for  their  "  rights,"  103. 

Penn,  William,  his  contract  for  settlement  of  Pennsylvania,  20;  laws 
during  his  governorship,  21,  43,  70. 

Pennsylvania,  laws  and  land  frauds  in  settlement  times,  20-22 ;  Colonial 
laws  respecting  the  working  class,  52-53 ;  houses  of  correction  es- 
tablished, 60;  Bill  of  Rights  of,  83;  importation  of  convicts  in,  89; 
penal  laws  of,  89-90;  land  seizures  in,  103,  104,  etc.;  huge  land 
grabbing  in,  169,  179,  194-195,  248-249. 

Pennsylvania  R'd,  509,  510,  518,  522,  525,  572,  612,  651,  666,  675,  751,  752. 

Peonage,  678. 

Peoples'  Gaslight  and  Coke  Co.  (of  Chicago),  588. 

Peoples'  Gaslight  Co.  (of  Pittsburg),  595. 

Peoples'  Traction  Co.,  759. 

Peralta  claim,  466. 

Peralta,  Dominigo,  466. 

Peralta,  Vincente,  466. 

Perkins,  Frances,  cited,  675-676. 

Perkins,  George  W.,  733,  765. 

Perry,  Andrew  T.,  389. 

Peter's  colony  (Texas)  grant,  422-423,  425,  426,  431-432,  529. 

Pettigrew,  R.  F.,  555,  614-615,  647-648. 

Phelps,  Oliver,  his  great  land  purchase,  86  (called  the  Phelps  and  Gor- 
ham  Purchase),  109,  111-115,  116. 

Philadelphia  Bank,  153. 

Philadelphia  and  Reading  R'd,  517,  775. 

Philadelphia,  Wilmington  and  Baltimore  R'd,  612. 

Phillips,  Frederick  and  his  son  Adolphus,  34-35,  139,  337. 

Phillips,  John  F.,  Judge,  732. 

Philippine  Islands,  648,  656. 

Pico,  Andreas,  453. 

Pico,  Acting  Governor,  453,  454,  456-457,  466,  525. 

Pico,  Antonio  Maria,  453. 

Pickett,  Martin,  101. 

Pierce,  Franklin,  474. 

Pinckney,  Charles  C,  242. 

Pittsburg,  Bessemer  and  Lake  Erie  R'd,  666. 

Pittsburg  and  Birmingham  Traction  Co.,  666. 

Pittsburg  and  Connellsville  R'd,  595-5Q6. 

Pittsburg,  Fort  Wayne  and  Chicago  R'd,  510,  651,  666. 

Pittsburg,  Virginia  and  Charlestown  Railway  Co.,  596. 

Pittsburg  and  Steubenville  R'd,  517. 

Pitney,  Henry  C.,  783-784. 

Pitney,  Mahlon,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
782;  previous  career,  782-783;  opposition  to  appointment  but  con- 
firmed, 783-785. 

Platt,  Thomas  C,  564,  597. 

Plattsburg  case,  302-304. 

Plymouth  Company,  18,  265. 

Polk,  Tames  K.,  478. 

Pollock,  John  C.,  Judge,  723. 

Pond,  Ashley,  592-593- 


814  INDEX 

Poore,  Ben  Perley,  cited,  442,  552. 
Populist  or  People's  Party,  494,  544,  613-614. 
Portland  Co.,  479. 
Portland  and  Kennebec  R'd,  479. 
Portland  and  Ogdensburg  R'd,  479. 
Portland,  Saco  and  Portsmouth  R'd,  479. 
Portland  Sugar  Co.,  479. 
Porto  Rico,  647-648. 
Post,  C.  C.  cited,  573. 

Powers  and  Hewitson  grant,  (or  vice-versa),  411,  426,  439. 
Powder  River  Cattle  Co.,  769. 
Principip  Co.,  93. 

Prudential  Life  Insurance  Co.,  522. 
Pueblo  and  Arkansas  Valley  Railway  Co.,  566. 
Pulteney,  Sir  William,  115. 
Pullman  Co.,  587. 

Pullman,  George  M.,  545,  587,  618-621,  625. 

Pullman  Workers'  Strike,  618-621 ;  decision  as  to  "  riot "  damages,  777- 
778. 

Quay,  Matthew  S.,  614-616,  700. 
Quigg,  Lemuel  Ely,  614-616,  700. 

Railroad  "  accidents  "  in  cases  of  workers,  498,  533-535,  584-586,  595- 
596,  653-654;  enormous  number  injured  and  killed,  655-666.  Also, 
684-685,  721-722,  710-711,  770-771. 

Railroad  land  grants,  429,  495,  502;  huge  total  of  grants,  511,  530,  543- 
544,  557,  563,  572-573,  592,  638-639. 

Railroads,  429,  435,  442,  479,  495-497,  498,  502,  507,  509,  510;  growth 
of  railroad  power,  511  and  528;  corruption  by,  512-514;  516,  517- 
525,  528,  530-551,  555-56o,  563-566;  railroad  power  in  control, 
574-575;  586,  592-593,  595-596,  600-603,  611-613;  great  railway 
strike  of  1894,  620-625;  626;  control  by  a  small  group,  628-630;  639, 
641-643,  648,  650-656,  659;  railroad  rate  Acts  unconstitutional,  672- 
673;  673-674;  doctrine  of  "transitory  risk,"  684;  718-734,  737,  748- 

753,  773,  775- 
Randall,  Robert,  173-174. 
Randolph,  Edmund,  407. 
Randolph,  John,   183. 
Rantoul,  Robert,  cited,  358^-359. 

Reading,  Pearson  B.,  and  his  California  land  claim,  462-463,  503. 
Recall  of  judges,  781-782. 
Reid,  John,  735. 
Revolution,  American,  causes  of  described,  73,  etc. ;  great  frauds  and 

jobbery  during,   107;   frauds  on  the  soldiers  of,   117-119,   124-125, 

146  and  239-240;  231,  237,  245,  272. 
Reynolds,  J.  N.,  425-426. 
Reynolds,  Robert,  313-315. 
Rhode  Island,  seizures  of  land  in  old,  15 ;  Colonial  laws  on  working 

class,  51;  establishment  of  pporhouses,  60;   cruel  punishment  for 

crimes,  63;  property  qualifications  for  voters,  87. 


INDEX  8l5 

Richardson,  G.  F.,  623. 

Richardson,  William  A.,  457-458,  552. 

Rittenhouse,  David,  180. 

Riverside  Canal  Co.,  570. 

Riverside  Land  and  Irrigation  Co.,  570. 

Roane,  Judge,  cited,  240-241,  279. 

Roberts,  J.  H.,  582. 

Robertson,  Sterling  C.,  411. 

Robeson,  George  F.,  524. 

Robinson,  Douglas,  763. 

Rockefeller,  John  D.,  612. 

Rockefeller,  John  D.,  Jr.,  756. 

Rockefeller,  William,  612,  628-629,  683,  748. 

Rogan,  Charles,  423. 

Rogers,  Henry  H.,  628-629,  683. 

Rome,  Wate'rtown  and  Ogdensburg  R'd,  740. 

Roosevelt,  Alice,  121. 

Roosevelt,  John,  165. 

Roosevelt,  Nicholas,  165. 

Roosevelt,  Theodore,  121,  643,  649,  650,  659,  660,  669,  673,  695,  696,  731, 

736,  773- 

Root,  Elihu,  628,  683,  741,  746. 
Rough  Mountain  Mining  Co.,  652. 
Rutledge,  John,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

144;   resigns,    145;   nominated   Chief  Justice  to  succeed  Jay,  218; 

nomination  rejected  by  Senate,  219;  his  death,  219. 
Ryan,  Allan,  761. 
Ryan,  Thomas  F.,  683,  734,  741,  748,  755-756,  757~764- 

Safety  Appliance  Act,  710-711. 

Safety  Electric  Light  and  Power  Co.,  746. 

Sage,  Russell,  441,  530,  539,  545,  548-551,  558,  591,  745- 

St.  Clair,  Governor  Arthur,  120,  314-315,  330. 

St.  Clair,  John,  314-315. 

St.  Clair,  Murray,  314-315.     • 

St.  Louis  and  Iron  Mountain  R'd,  726. 

St.  Louis  and  San  Francisco  R'd,  623,  726. 

St.  Louis  and  Southwestern  R'd,  629. 

St.  Louis,  Vandalia  and  Terre  Haute  R'd,  586. 

St.  Mary's  Falls  Ship  and  Canal  Co.,  593-594- 

Sanford,  J.  F.  A.,  469. 

San  Jacinto  Tin  Co.,  570. 

Santa  Anna,  General,  413,  608-611. 

Sargent,  Winthrop,  98-99. 

Savage,  John,  31,  98. 

Sawyer,  Lorenzo,  568,  602. 

Schiff,  Jacob  H.,  741,  756.. 

Schuyler,  David,  106,  107. 

Schuyler,  Elizabeth,  106. 

Schuyler,  George  W.,  cited,  33,  107. 

Schuyler,  Peter,  origin  of  great  landed  estate,  33-34,  106,  107. 

Schuyler,  General  Phillip,  106,  149,  202. 


8l6  INDEX 

Schuylkill  and  Susquehanna  Navigation  Co.,  180. 

Schwab,  Charles  M.,  666-667,  756. 

Scioto  Co.,  123-124. 

Scott,  Gustavus,  176. 

Searight  Cattle  Co.,  769. 

Second  National  Bank  (of  Pittsburg),  596. 

Selden,  Dudley,  409,  412. 

Seligman,  J.  and  W.,  756. 

Selma  and  Gulf  R'd,  435. 

Seminole  Indians  and  War,  341-343. 

Semple,  Charles  D.,  452. 

Servis,  Peter,  42. 

Sessions,  Lorenz  B.,  628,  632. 

Seward,  Clarence  A.,  563,  615. 

Seward,  Senator,  cited,  472-473,  476;  563,  564. 

Sewell,  Joseph,  184. 

Sharon,  William,  590. 

Sharp,  Jacob,  499. 

Shaw,  Quincy  A.,  594. 

Sherman  Anti-Trust  Act,  634,  662,  667,  668,  671 ;  used  against  labor 
unions,  689-692;  696,  730,  765-766,  782-783,  785-786. 

Sherman,  John,  487,  510,  556,  569. 

Sherman,  Roger,  78. 

Shipbuilding  Trust,  755. 

Shipping  Trust,  776. 

Shiras,  George,  Jr.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  594;  previous  career  as  railroad  attorney,  595-596;  his  course 
in  Income  Tax  case,  616,  625;  delivers  decision  in  favor  of  rail- 
roads, 636;  639;  resigns,  650.  Also,  655,  656;  his  decision  in  Voight 
case  reverted  to,  657. 

Sibley,  John,  319. 

Sioux  City  and  Pacific  R'd,  578. 

Sioux  City  and  St.  Paul  R'd,  560. 

Slaughter  vs.  Groves    (or  vice  versa),  case  of,  400-403. 

Slaves  and  slaveholding,  in  Colonial  Virginia,  22,  27,  30;  in  Colonial 
South  Carolina,  48;  prohibited  in  Northwest  Territory,  100;  ques- 
tion of  in  Federal  Constitutional  Convention,  218;  also  variously, 
219,  226,  230,  233,  283 ;  slave  traffic  legalized  by  Chief  Justice  Mar- 
shall, 296-300;  number  of  slaves  in  U.  S.,  300-301  ;  slave  trade, 
303,  304,  362-365,  398;  extension  of  slave  power's  domains,  304, 
359,  390,  393;  slaves  held  by  law  to  be  merchandise,  400-403; 
slavery  denounced  by  New  England  mill  workers,  446 ;  laws  against 
slavery  declared  unconstitutional,  470-472;  extent  of  slave  power 
in  1850,  473. 

Sloo,  Thomas,  Jr.,  329. 

Smelter  Trust,  673. 

Smith,  Herbert  Knox,  cited,  598-604. 

Smith,   Samuel,  389. 

Smith,  Col.  William,  32. 

Smith,  William,  172. 

Smyth,  John  F.,  627. 

Somerset  and  Kennebec  R'd,  479. 


INDEX 

"  Sons  of  Liberty,"  82. 

Soto,  Josepha,  453. 

Soulard,  Antoine,  338-339,  403-404. 

Soulard  land  claims,  338-339. 

South  Carolina,  land  seizures  in,  during  settlement  times,  45-46 ;  property 
qualifications  for  voters,  87;  entail  and  primogeniture  abolished 
in,  95- 

South  Boston  R'd,  648. 

South  Chicago  Railway  Co.,  578. 

Southern  Express  Co.,  563. 

Southern  Pennsylvania  R'd  Co.,  612-613. 

Southern  Railway  Co.,  737,  776. 

Southern  Michigan  R'd,  531,  533-535- 

Southern  Pacific  R'd,  547,  557,  568-5 70,  572-573,  604-605,  611,  640,  642, 
646,  674,  7i8,  730-73L 

Southwestern  Railway  Association,  574. 

Sparks,  W.  A.  J.,  592. 

Spanish-American  War,  647. 

Spencer,  Eliphas,  429-430. 

Speyer,  James,  628-630. 

Spooner,  John  C,  543,  578,  673. 

Springfield  and  Mansfield  R'd,  556. 

Springvale  Ditch  Co.,  769. 

Standard  Electrical  Subway  Co.   (of  N.  Y.),  681. 

Standard  Oil  Co.,  537/558,  612,  615,  629-630,  683,  700,  701,  733,  737-738, 
750,  755 ;  "  Rule  of  Reason  "  decision,  778-779,  783. 

Stanford,  Leland,  441,  502,  507,  551,  558,  564,  567-570,  605,  640-642,  645. 

Stanton,  Edmund  M.,  453,  455,  458;  appointed  Associate  Justice,  Su- 
preme Court  of  U.  S.  and  his  death  four  days  later,  517. 

State  Bank  (of  Mass.),  268. 

State  Bank  of  Ohio,  531. 

Steamship  Trust,  673. 

Steel  Trust,  597,  650,  652,  658,  666-669,  733,  773,  776,  783. 

Steele,  William  H.,  411,  418. 

Steffens,  Lincoln,  cited,  596. 

Stephen,  George,  98. 

Stetson,  Francis  Lynde,  614. 

Stevens,  Alexander  H.,  470-471. 

Stevens,  Benjamin,  389. 

Stevens,  Edwin  A.,  518-520,  523. 

Stevens,  Linton,  471. 

Stevens,  Thaddeus,  cited,  486-487. 

Stewart,  A.  T.,  515. 

Stillman,  James,  748. 

Stockton,  John  P.,  523-524. 

Stockton,  Richard,  518. 

Stockton,  Robert  F.,  518. 

Stoddert,  Benjamin,  177-178. 

Story,  Joseph,  attorney  for  claimants  of  great  fraudulent  Yazoo  grants, 
260;  in  Congress,  260;  dines  with  Supreme  Court  judges  while 
case  is  under  consideration,  260-261  ;  his  career,  261 ;  wins  in 
Fletcher  vs.  Peck  case  (Yazoo  frauds),  262-264;  advocates  property 


8l8  INDEX 

qualification  for  voters,  261,  290-291 ;  lobbies  bank  charters  through 
Massachusetts  Legislature,  266-268;  president  of  Merchants'  Bank 
of  Salem,  268;  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
269;  decides  claim  to  Fairfax  estate  in  favor  of  Chief  Justice 
Marshall  and  brother,  272;  his  decision  denounced,  278-280;  re- 
affirms its  constitutional  points,  281 ;  attitude  of  toward  negro 
slavery,  301 ;  decision  in  "  Plattsburg "  case,  302-304 ;  decision  in 
Astor  case,  337 ;  362 ;  decision  in  Gooding  slave  trade  case,  364-366 ; 
decision  in  "Warren"  case,  369-370;  dissents  in  State  bank  case, 
394-395 ;  decision  in  "  L'Amistad "  case,  339 ;  dissents  in  Groves 
vs.  Slaughter,  402;  his  death,  408.  Also,  441. 

Story,  William,  261. 

Story,  William  W.,  cited,  260-261,  268,  269. 

Strikes,  358-359,  444-446,  618-625,  643,  685,  689-693. 

Strong,  William,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 
517;  previous  career  as  a  corporation  attorney,  517-518;  delivers 
decision  reversing  first  Legal  Tender  decision,  524;  declares  "  State 
Freight  Tax"  unconstitutional,  524;  548,  551;  retires  on  a  pension, 

555- 

Strother,  George  F.,  389. 

Suffrage,  property  qualification  for  voters,  85-88. 
Sugar  Trust,  627 ;  decision  of  Supreme  Court  of  U.  S.  in  favor  of,  634 ; 

enormous  customs  frauds  of,  635-636  and  711-712;  647,  656-657,  665, 

670,  704,  708,  7U-7I4,  715,  783. 
Sullivan,  William,  264. 
Sumner,  W.  H.,  409. 
Sutter  case,  502-504. 
Sutter,  John  A.,  503. 
Sutliff,  Milton,  532,  534. 
Swartwout,  Samuel,  422. 
Swayne,  Charles,  699. 
Swayne,  Noah,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

497;  his  previous  career,  496^-497;  dissents  from  first  Legal  Tender 

decision,  505 ;  524,  525 ;  decision  in  railroad  bond  case,  541 ;  resigns, 

556.    Also,  655. 
Symmes,  John  Cleves,  119-124. 

Taft,  Henry  W.,  695. 

Taft,  William  H.,  656,  683;  views  and  environment,  695-696;  defense 
of  judiciary,  696-698;  702,  723,  736,  738,  753,  764-766,  767,  772- 

774,  777,  782,  783- 

Tammany  Hall,  83,  202,  225,  422,  513,  627,  698,  751. 

Taney,  Roger  B.,  303-304,  321,  355 ;  appointed  Chief  Justice,  Supreme 
Court  of  U.  S.,  359;  ancestry,  youth,  environment  and  economic 
interests,  359-360;  elected  to  Maryland  Senate,  360;  Attorney 
General  of  Maryland,  360;  bank  attorney,  stockholder  and  director, 
360;  attorney  for  large  capitalists  and  landowners,  361-362;  de- 
fends John  Gooding,  notorious  slave  trader,  362-365;  case  of  the 
"Warren,"  366-370;  appointed  Attorney  General  of  the  U.  S.,  370- 
371 ;  Secretary  of  Treasury,  360,  371 ;  great  land  frauds  under  his 
administration,  372,  376-390;  support  of  by  the  slave  power,  State 
banks  and  land  appropriators,  374;  appointment  as  Chief  Justice 


INDEX 

confirmed,  391;  decision  in  a  State  bank  case,  394;  Charles  River 
Bridge  case  decision,  396-397;  opinion  in  Groves  vs.  Slaughter 
holding  negro  slaves  to  be  merchandise  and  declaring  supremacy 
of  State  rights,  402-403;  validation  of  fraudulent  private  land 
claims,  404-406;  409;  Maison  Rouge  claim  rejected,  437;  effect  of 
decisions  under,  440;  decision  in  Fremont  case,  451 ;  467;  his  course 
in  Dred  Scott  decision,  469-477 ;  discredited,  480-481 ;  his  death, 
482.  Also,  529. 

Tariff  ("Wilson  Bill"),  708-709,  711-714. 

Taylor,  Babcock  and  Co.,  579-582. 

Taylor,  George,  78. 

Taylor,  John,  389. 

Taylor,  John  K.,  382. 

Taylor,  Lemuel,  366-368. 

Taylor,  Talbot  J.,  729. 

Taylor,  William,  389. 

Teller,  Henry  M.,  cited,  647-648. 

Tennessee,  entail  and  primogeniture  abolished  in,  95. 

Tennessee  Coal  and  Iron  Co.,  597. 

Tennessee  Co.,  182-184,  186,  191,  264. 

Terra  Haute  and  Peoria  Railway  Co.,  650. 

Terry,  Judge  David  T.,  501-502;  shot  and  killed,  590-591. 

Texas,  immense  land  frauds  in,  340;  described  at  length,  409-439, 
449;  vast  grants  of  lands  to  railroads,  511;  how  an  aggregate  of 
3,000,000,  acres  were  secured  on  one  contract,  579-582. 

"  Texas  Association,"  423. 

Texas  Land  and  Immigration  Co.,  425. 

Texas  Pacific  R'd,  543-544,  557,  572-573,  629,  636. 

Texas  Trading,  Mining  and  Emigration  Co.,  425. 

Thompson,  Smith,  120-121  ;  appointed  Associate  Justice,  Supreme  Court 
of  U.  S.,  295-296;  336;  decision  in  Groves  vs.  Slaughter,  401. 

Thorn,  Frost,  411. 

Throckmorton  private  land  claim,  458,  552-554. 

Thurman,  Allan  G.,  532. 

Thurston,  John  M.,  770,  772. 

Tilden,  Samuel  L.,  555. 

Timber  and  timber  lands,  more  recent  cases  of  thefts  of,  543,  598-603, 
647-648. 

Tobacco  Trust,  647,  663,  672,  683 ;  "  Rule  of  Reason  "  decision,  778-779, 

783. 

Todd,  J.,  99,  292. 
Todd,  William,  appointed  Associate  Justice,  Supreme  Court  of  U.  S., 

253;  272,  274. 
Toledo  Bank,  535. 
Toledo  Insurance  Co.,  531. 
Toledo,  Peoria  and  Warsaw  R'd,  479. 
Toledo,  St.  Louis  and  Western  R'd,  755. 
Tompkins,  Daniel  D.,  250,  267,  278. 

Trade,  Colonial  frauds  in,  70-71,  75,  77-79;  later  frauds,  274-276. 
Traders'  Bank   (of  Chicago),  583. 
Treadwell,  J.  W.,  cited,  268-269. 
Tremont  Bank  (of  Boston),  442. 


82O  INDEX 

Trimble,  -Justice,  331. 

Trinity  Church,  41. 

Trumbull,  Lyman,  623-624. 

Trusts,  537,  558,  593-594,  612,  615,  624,  627,  628-630,  633-634,  635-636, 
647-648,  650,  652,  661-664,  665,  666-669,  670,  671-675,  683,  701,  704, 
708,  711,  714,  733,  755,  765-766,  776,  778-779,  783-786. 

Tuttle,  Lucius,  659. 

Tweed,  William  M.,  and  Tweed  regime,  513. 

Tyler,  (Taney's  biographer)  cited,  360,  480-481. 

Union  Bank  of  Maryland,  360-361,  371. 
Union  National  Bank  of  Chicago,  582. 
Union  Pacific  R'd,  495,  513,  539,  544-552,  572-573,  599,  673-674,  729-731, 

767-771, .773- 

Union  Traction  Co.   (of  Chicago),  586. 
Union  Transportation  Line,  518. 
United  Railways  of  New  Jersey,  518-522. 
United  States  Express  Co.,  563,  564,  657. 

United  Hatters'  Union,  689-692.     (See  also  Danbury  Hatters'  case.) 
United  States  Illuminating  Co.,  746. 
United  States  Light  and  Power  Co.,  747. 
Untermeyer,  Samuel,  cited,  696-762. 
Upper  Mississippi  Co.,  182,  etc.,  264. 
Usher,  John,  19. 
Utah,  449. 

Vaca  and  Pena  land  claim,  464. 

Vallee,  Francois,  322. 

Vallejo,  M.  G.,  457-458. 

Valley  Bank  (of  Ohio),  532. 

Van  Buren,  Martin,  393. 

Van  Courtlandt,  Jacobus,  138-139. 

Van  Courtlandt,  Stephanus,  138. 

Vanderbilt,  Commodore  Cornelius,  295,  410,  441,  513. 

Vanderbilt,  Cornelius,  628,  630. 

Vanderbilt  interests,  625,  629,  658. 

Vanderbilt,  William  H.,  537-540,  558,  565,  612. 

Van  Devanter,  Willis,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  767;  previous  career  and  connections,  767-769;  Artist  case. 
770-771;  772;  Bryan's  comments,  772-773;  delivers  decision  up- 
holding Employers'  Liability  Act,  780;  concurs  in  patents  decision, 

•      782. 

Van  Ness,  Marcia,  175. 

Vanmeter,  John,  23. 

Van  Rensselaer  family,  its  great  power,  32,  149-150. 

Van  Rensselaer,  Kiliaen,  his  vast  estate,  31. 

Van  Rensselaer,  John,  149. 

Van   Rensselaer,    Stephen,   149. 

Van  Rensselaer,  Stephen  (son  of  preceding),  149,  206,  212,  253^ 

Vehlein,  Joseph,  411,  418. 

Vertrees,  John  J.,  738. 

Vest,  Senator,  713. 


INDEX  821 

Virginia,  Colonial  land  laws  and  the  fraudulent  obtaining  of  great  es- 
tates, 22-31 ;  Colonial  laws  regarding  slaves,  servants  and  laborers, 
56-50;  houses  of  correction  and  poorhouses  established,  61-62; 
estatv  s  confiscated  during  Revolution,  94 ;  large  land  grants  in,  98, 
etc.;  its  corrupt  courts  give  land  grants  to  themselves,  158;  ques- 
tion of  confiscated  estates  in,  207-208,  237-241,  278-281,  etc.;  land 
seizures  in,  255,  329;  leading  slave  breeding  State,  300-301. 

Wabash  and  Erie  Canal,  536. 

Wabash  R'd,  591,  629. 

Wadsworth,  Jeremiah,  107. 

Waite,  Richard   (brother  of  Chief  Justice  Waite),  531,  534, 

Waite,  Monison  I.,  appointed  Chief  Justice,  Supreme  Court  of  U.  S., 
528 ;  his  record,  clients  and  attachments  as  a  lawyer,  531-537 ;  rail- 
road direciior,  538;  decisions  under  him  as  Chief  Justice,  541-554; 
556;  validation  of  the  huge  Maxwell  land  claim  in  New  Mexico 
and  Arizona  owned  largely  by  Stephen  B.  Elkins,  565-567 ;  570- 
571 ;  rushed  in  a  dying  state  to  sit  in  telephone  cases,  575-576 ;  his 
death,  576-5;?.  Also,  582,  685. 

Wagner,  Louis,  735. 

Wales,  Levin,  319,  320. 

Walker,  George,  183. 

Walker,  Robert  J.,  377,  409,  478,  513,  605-606. 

Wall  and  Cortland  St.  Ferries  R'd  Co.  (N.  Y.  City),  758-759,  761-762. 

Walton,  Robert,  183. 

Ward,  Jasper,  333. 

Warner,  Samuel,  case  of,  584-586. 

Warren,  Francis  E.,  ytv,  771-772. 

Washburn  and  Moen  Manufacturing  Co.,  578. 

Washington  and  Baltimore  Turnpike  Co.,  176. 

Washington,  Bushrod,  ^14-115,  152,  185;  appointed  Associate  Justice, 
Supreme  Court  of  VJ.  S.,  222 ;  studied  under  James  Wilson,  223 ; 
his  wealth  and  powerful  connections,  223-224 ;  personal  friend  of 
Marshall,  224;  247,  -^61,  271,  277,  331. 

Washington,  George,  gers  a  grant  of  200,000  acres  for  himself  and 
other  officers,  29-30,  and  97;  99,  114,  117,  122-124,  129,  137,  142,  144, 
145,  147,  149,  151-152,  163,  176,  178,  192,  197,  198,  207-208,  223,  236, 
253,  407. 

Washington,  State  of,  3(xV 

Watrous,  Judge  John  C.,  -125-432,  437-438,  439. 

Watts,  R.  and  J.,  39. 

Wayne,  James  Moore,  Associate  Justice,  Supreme  Court  of  U.  S.,  358, 
437,  447,  462,  463 ;  his  death,  514. 

Weber,  Charles  M.,  453. 

Webster,  Daniel,  217-218,  287-292,  320,  342,  442-443. 

Webster,  Sidney,  683,  731. 

Wells,  E.  M.,  756. 

Wells-Fargo  Express  Co.,  5(^-564. 

West,  Nathaniel,  Jr.,  390. 

Western  Atlantic  R'd,  718. 

Western  Federation  of  Mineis,  685-687. 

Western  Freight  Railway  Organization,  574. 


822  INDEX 

Western  Maryland  R'd,  629. 
Western  Reserve,  163. 
Weston,  Nathan,  582. 

West  Virginia,  land  grants  in,  106;  land  grabbing  in,  184-185. 

Wetmore,  William,  258,  264. 

Weyerhaeuser  Timber  Co.,  604. 

Wheeler,  Judge  R.  T.,  420,  421. 

Wheeling  and  Lake  Erie  R'd,  629,  651-652. 

Wheelock,  Eleazer,  286. 

Wheelock,  E.  L.  R.,  cited,  418. 

Wheelock,  John,  286-287. 

Whipple,  William,  78. 

White,  Edward  D.,  appointed  Associate  Justice,  Supreme  Court  of 
U.  S.,  611;  dissents  in  Income  Tax  case,  617;  625,  666,  678,  684; 
appointed  Chief  Justice,  695,  702;  sketch  of  his  previous  career, 
703-704;  bitterly  attacked  after  election  as  U.  S.  Senator,  704-708; 
in  the  U.  S.  Senate,  708-710;  his  safety  appliance  amendment, 
710-711;  sugar  tariff  schedule,  711-713;  sugar  bounty  Act,  Supreme 
Court's  decision  and  White's  connection,  714-719;  766,  etc.;  de- 
nounces patents  decision  delivered  by  Justice  Lurton,  782. 

Whisky  "  Ring,"  515. 

White,  Joseph   M.,  333. 

Whitney,  J.  D.,  593. 

Whitney,  William  C,  612,  749,  759,  763. 

Whitney,  Stephen,  409-410,  412,  413. 

Wickersham,  George  W.,  cited,  675,  777. 

Willamette  Valley  and  Cascade  Mountain  Road  Co.,  599-603. 

Williams,   George  H.,  529,  643. 

Williams,  Joel,  121. 

Williams,  Jonathan,    105. 

Williams,  Joseph  L.,  265,  425,  433~434- 

Williams,  Samuel  M.,  410-411,  413,  417-418,  425,  429. 

Willinck,  William,  115,  116,  161,  166. 

Willing,  Charles,   101,  105,  391-392. 

Willing,  Thomas,  106,  114,  153-155. 

Wilson,  Henry,  cited,  300-301,  304. 

Wilson,  James,  105,  117,  130-131;  appointed  Associate  Justice,  Supreme 
Court  of  U.  S.,  147;  his  previous  and  accompanying  career,  151 ;  his 
Bank  of  North  America  transaction,  153-156;  162;  his  enormous 
land  operations,  162,  165,  167-175;  prominent  in  the  great  Yazoo  land 
frauds,  181-184;  185,  190-191 ;  evasion  of  arrest  and  his  death,  195- 
196.  Also,  205,  215,  220,  223-224,  235,  2^8,  259,  292,  etc. 

Wilson,  Joseph  H.,  570-571. 

Winthrop,  Thomas  L.,  184,  264-265. 

Wirt,  William,  cited,  229. 

Wisconsin,  thefts  of  timber  lands  in,  543.  (For  further  details  ot 
great  appropriations  of  agricultural  and  timber  lands  in,  see  Russell 
Sage,  La  Crosse  and  Milwaukee  R'd,  Bribery  and  Corruption, 
Legislative  Corruption,  etc.) 

Wise,  Henry  A.,  cited,  670. 

Wolcott,  Oliver,  216-217,  221. 

Woman  labor,  origin  of  in  American  factories,  79-82,  442-445. 


INDEX  823 

Wollman,  Henry,  cited,  775. 

Wood,  John,  cited,  126. 

Woodbury,  John  L.,  41!. 

Woodbury,  Levi,  158,  347,  371,  372,  387,  388,  390;  appointed  Associate 

Justice,  Supreme  Court  of  U.  S.,  408-409;  death  of,  440. 
Woodruff,  L.  B.,  412. 
Woods,  George  L.,  601. 
Woods,   William   B.,   appointed   Associate  Justice,    Supreme    Court   of 

U.  S.,  556;  previous  career  of,  556;  "succeeded  by  Justice  Lamar,  571. 
Workhouses,  established,  59-62. 
Worcester  and  Nashua  R'd,  658. 
Wright,   Carroll  D.,  cited,  621. 
Wright,  Governor  James,  45-46. 
Wrought  Iron  Bridge  Co.,  652. 
Wyatt,  Dudley,  25. 
Wyoming,  seizures  of  land  in  by  railroad  and  cattle  companies,  768- 

769. 
Wyoming  Cattle  Co.,  768-769. 

Yazoo  frauds  —  colossal  land  area  obtained  by  bribery, —  155-160  and 
181-184,  223,  242,  255,  258-264;  companies  get  $4,950,000  indemnity, 
264.  Also,  328,  335. 

Yeates,  Judge,  155,  168. 

Young,  Samuel  R.,  531,  535,  537. 

Yount,  George  C,  453. 

Yturbide,  Augustin  De,  457. 

Zavala,  Lorenzo  D.,  411,  418. 


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